HomeMy WebLinkAboutResolution 2003-006 construction of water facilities for farm field fiveMARANA RESOLUTION NO. 2003-06
A RESOLUTION oF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA,
ACCEPTING AND AUTHORIZING TIlE APPROVAL OF AN AGREEMENT BETWEEN THE
TOWN OF MARANA AND FCD MARANA VENTURE I, L.L.C., AN ARIZONA LIMITED
LIABILITY COMPANY FOR CONSTRUCTON OF POTABLE AND NON-POTABLE WATER
FACILITIES AND PROVISION OF WATER UTILITY SERVICE.
WHEREAS, FCD Marana Venture I, L.L.C.,. intends to facilitate the development of that
certain property to be called Farm Field Five, more specifically describe '. · · ....
Agreement for Construction of ~,. ~.~ xT__ ,, ......... "... . d w~th/n Exhibit 1, an
Potab,,. ,~,u l~un-rotame water eac~l~t~es and Provision of Water
Utility Service between the Town of Marana and FCD Marana Venture I, L.L.C. (the" ,,
and Agreement );
WHEREAS, FCD Marana Venture I, L.L.C., is desirous of arranging for the provision of
water service to and w/thin the Property in connection with Development thereof; and
WHEREAS, Marana is willing to provide water service to and within the Property i n
accordance with the Municipal Code of Marana and in accordance with the terms of the Agreement;
and
WHEREAS, FCD Marana Venture I, L.L.C., agrees to the construction of water facilities
within Farm Field Five; and
WHEREAS, t he T own o fM arana, agrees t o provide water service to Farm Field Five
development, pursuant to the terms and conditions of the Agreement; and
WHEREAS, the Mayor and Council find that the terms and conditions of the Agreement are
in the best interest of the Town.
Marana, Arizona Resolution No. 2003-06
1 of 3
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana,
Arizona, accepting and authorizing the approval of the Agreement for Construction of Potable and
Non-Potable Water Facilities and Provision of Water Utility Service between the Town of Marana
and FCD Marana VentUre I, L.L.C., an Arizona limited liability company, attached hereto as Exhibit
"1" and incorporated herein by this refe~:ence, for construction of potable and non-potable water
facilities and provisions for water utility service.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, th/s
18r}~ day of March, 2003.
ATTEST: ~I~N, JR. --
"l'own Clerk
APPROVED AS TO FORM:
D el j. gsa. -
As Town Attorney
and not personally
Marana, Arizona Resolution No. 20034)6 2 of 3
EXHIBIT "1"
Marana, Arizom Resolution No. 2003-06
3 of 3
F. ANN RODRIGUEZ~.ECORDER
RECORDED BY: AM
DEPUTY RECORDER
9722 AS2
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DOCK 12022
PAGE: 2754
NO. OF PAGES: 29
SEQUENCE: 20030650761
04/04/2003
AG 16:23
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SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS.RD
MARANA AZ 85653
MAIL
AMOUNT PAID $ 20.00
TOWN OF MARANA
AGREEMENT FOR CONSTRUCTION
OF POTABLE AND NON-POTABLE WATER FACILITIES
AND PROVISION OF WATER UTILITY SERVICE
THIS AGREEMENT FOR CONSTRUCTION OF POTABLE ~~-
POTABLE WATER FACILITIES, entered into as ofthe~ day ,2003 by
and between the TOWN OF MARANA, ARIZONA, an Arizona municipal corporation,
(hereinafter referred to as "Marana") and FCD Marana Venture I, L.L.C., an Arizona
limited liability company (hereinafter referred to as the "Developer" or Applicant"), is for
the construction of "Water Facilities" necessary to provide water utility service to its
Property, which is more specifically described on Exhibit "A" attached hereto and made
a part hereof, (hereinafter the "Property"), on the following terms and conditions:
RECITALS
WHEREAS, Developer warrants that (i) Developer is legally qualified to do
business in the State or Arizona, and (ii) prior to this Agreement becoming effective
pursuant to Paragraph 11.6 hereof, Developer will own or will have the exclusive option
to purchase the Property which is the subject to this Agreement; and
WHEREAS, Developer is desirous of arranging for the provision of water service
to and within the Property in connection with development; and
WHEREAS, Marana (i) owns and operates a municipal water system, and (ii) is
experienced in the provision of water service; and
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WHEREAS, Marana is willing to supply water to Developer in accordance with
the Municipal Code of Marana, and in accordance with the terms of this Agreement.
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COVENANTS
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NOW, THEREFORE, in consideration of the Recitals set forth above and the
mutual covenants, conditions, and agreements set forth below, the parties agree as
follows:
1. DEFINITIONS
1.1 Applicant or Developer: FCD Marana Venture I, L.L.C., and its
successors and assigns.
1.2 Property: That certain property or real estate development known as
Vanderbilt Farms as shown on Exhibit "A" attached hereto and made a
part hereof.
1.3 Water Facilities: The public water facilities and appurtenances to be
constructed under this Agreement and located within public rights-of-way
or dedicated easements, and which, upon completion by Developer and
inspection and acceptance by Marana, are to be deeded to Marana for
operation and maintenance, including but not limited to water mains,
valves, pipelines, booster pumps, wells, reservoirs and all other water
facilities necessary for potable and non-potable water service to the
Property and appurtenant to the municipal water supply system of
Marana.
1.4 Water System: Water Facilities, including water mains, valves, hydrants,
pipelines, booster pumps, wells, reservoirs, telemetry and all other water
facilities and appurtenances necessary for potable and non-potable
service to the Property and appurtenant to the municipal water supply
system of Marana.
1.5 Work: As defined in Paragraph 2.7.
2. CONSTRUCTION OF WATER FACILITIES
2.1 Plans and Specifications. Testing and Phasing. Developer shall design
and construct, at Developer's own expense, the Water Facilities in
accordance with approved Plans and Specifications. The approved Plans
and Specifications shall (i) conform to the design standards of the City of
Tucson Water Department and the Marana Town Water Code, (ii) be
sized to and capable of serving the water needs of the maximum
authorized development on the Property (including all commercial and
noncommercial development to be served by Marana), and (iii) designate
the point of interconnection referred to in Paragraph 2.6 hereof. A copy of
said approved On-Site Plans and Specifications for the Water Facilities is
attached as Exhibit "B."
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(a) The Plans and Specifications shall include, at a minimum:
(i) Water Production Facilities. Developer shall convey to Marana
one (1) or two (2) potable water well(s), per Phasing Outline
Exhibit "C" attached, with a combined production capacity of not
less than two thousand (2000) gallons per minute, which
Developer warrants, equals, or exceeds the water production
capacity needed to serve the Property when fully developed.
Developer will drill one (1) or two (2) new well(s) to a depth
mutually agreed upon in writing (currently estimated at seven
hundred feet [700']), and initially twenty inches (20") in diameter.
In any event, the well(s) to be conveyed to Marana shall be
capable of equaling or exceeding the production capacity
specified above. The well(s) will be connected with a sixteen-
inch (16") fill line to the regional storage tank. A twelve-inch
(12") pressure main will provide the potable water to the
development from a regional distribution point, now located in
Barnett Road, to be determined by Marana.
(ii) Separate Non-Potable Distribution System. Developer shall
design and construct at Developer's own expense separate
potable and non-potable distribution systems throughout the
Property. The non-potable shall be constructed so as to clearly
distinguish the non-potable system from the potable system and
be capable of carrying untreated water from any source, such as
CAP, groundwater, surface water and effluent (or reclaimed
water). Design concept and specifications to follow under
separate agreement.
(iii) Interconnections. Developer shall design and construct at
Developer's own expense an interconnection of their on-site
twelve-inch (12") main to the Marana existing eight-inch (8")
potable main per Exhibit "C" Phasing Outline. Appurtenant
facilities to interconnect the potable Water System to the Marana
potable and non-potable water systems to the Marana non-
potable at location specified by Marana. Unless otherwise
mutually agreed and set forth on the Plans and Specifications,
the non-potable interconnection will terminate at the Marana
potable water system. There will be no interconnection of
potable and non-potable systems.
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(iv) Storage and Fire Protection. Developer shall payor participate
at the second (2nd) phase of their development in a regional
water storage facility for the potable water system based on the
fire protection needs of the Water System at the Property's build-
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out which will be equal to, or exceed the estimated water usage
on the hottest day of the summer, together with two (2) hours of
fire flow at one thousand five hundred (1500) gallons per minute,
or if Marana is to serve any commercial development on the
Property, then three (3) hours of fire flow at one thousand five
hundred (1500) gallons per minute. A portable self-contained
generator of sufficient size to operate the well and 1200 gpm
booster station fire pump will be installed to meet fire code
requirements at the start of phase two (2) per Exhibit "c"
Phasing Outline.
(b) Well and Water Quality Testinq. Developer shall comply with Article
10, Chapter 2, Title 45, Arizona Revised Statutes governing well
drilling, such as securing permits, use of licensed well drillers, filing
well logs and meeting well standards. Developer shall perform well
testing conforming to the American Water Works Association
Standards (AWWA) for pump tests and shall conduct water quality
testing conforming to the standards of the Arizona Department of
Environmental Quality (ADEQ) and Pima County of Department of
Environmental Quality (PCDEQ) for quality certification of new
source wells. Water quality tests shall be sampled during the end of
the longest continuing pumping period.
(c) Phasinq. Developer and Marana recognize that not all Water
Facilities may be necessary to service the initial phase or phases the
development proposed for the Property. The phasing is agreed to in
writing and attached to this Agreement as Exhibit "C." Fees are due
at the time the Form A-Major Utility Installation Permit is issued.
2.2 Plans and Specifications and Water Facilities Approval. The Plans and
Specifications for the Water Facilities shall be reviewed and approved in
writing by Marana, ADEQ and PCDEQ before issuance of any Water
Facilities construction permits by Marana. No work shall commence until
Marana has issued a Water Facilities construction permit. The water
production and storage facilities as specified in the Plans and
Specifications shall be (i) constructed, (ii) issued a certificate to operate by
ADEQ or PCDEQ, and (iii) accepted by Marana prior to Marana issuing
Developer a Certificate of Occupancy for any residential or commercial
unit, subject to the phasing as provided for in Paragraph 2.1 (c) above
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2.3 Contractor. The Water Facilities shall be constructed by a contractor
properly licensed by the state of Arizona and in accordance with Plans
and Specifications prepared by a qualified registered professional
engineer. The location in the ground and manner of installation shall
comply with the requirements of all public agencies having authority to
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prescribe regulations with respect to the location and manner of
installation.
2.4 Permits and Licenses. Applicant shall obtain all necessary permits and
licenses, pay all fees and comply with all laws, ordinances and regulations
related to the public health, safety, welfare and construction of the Water
System.
2.5 Materials. Workmanship. Equipment and Machinery. All materials shall be
new and both the workmanship and materials shall be of good quality and
shall meet the combined specifications and standards of (a) AWWA, (b)
ADEQ, (c) PCDEQ, (d) all applicable local regulatory agencies, and (e)
the plans and specifications incorporated herein by reference in Exhibit
"B." Developer shall repair, or remove and replace, at Developer's own
expense and at Marana's convenience, workmanship or materials which
do not meet the described criteria or which prove to be defective at any
time within one year from the date of the final acceptance of Applicant's
work by Marana.
2.6 Connectinq New Facilities. Upon completion by Developer and
acceptance by Marana, of the Water Facilities, Developer will dedicate the
Water Facilities and Water System to Marana, without cost to Marana,
and Marana shall thereafter operate and maintain the Water Facilities as
an integral part of its municipal water utility. The Water Facilities
constructed pursuant to this Agreement shall provide a point of connection
to Marana's existing water facilities at the point directed by Marana for
Service Area requirements. After commencing water service to the
Property, for the purposes of this paragraph, the provisions of Marana
Code 914-7 and any successor or amendatory provisions are
incorporated herein as though set forth in full and Developer, except to
the extent to do so would be inconsistent with the provisions thereof, is
deemed for the purposes hereof to be the ApplicanUCustomer/Developer
described therein.
2.7 Inspection. Testing and Correction of Defects. Developer shall comply
with the inspection and testing requirements of ADEQ, PCDEQ, and
Marana for the facilities to be constructed hereunder, PROVIDED
HOWEVER, said requirements shall be reasonable and shall not cause
Developer unwarranted delays in the ordinary course of construction.
Developer shall promptly notify Marana when the Water Facilities under
construction are ready for inspection and testing; and upon 24 hours
written notice to Marana, Marana shall thereafter inspect the same
promptly after being so notified. For the purpose of inspection and testing
of everything covered by this Agreement, or performance of the Work
thereon (the "Work"), Developer shall give Marana and any inspectors
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appointed by it, free access to the construction site and facilitate the
proper inspection of such materials, including procurement data, and shall
furnish them with full information whenever requested as to the progress
of the Work in its various stages. The approval of the Work by any such
inspector shall not relieve Developer from its obligation to comply in all
respects with the instructions and specifications to make the Work a
finished job of its kind, completed in accordance with the best practices.
Developer agrees that no inspection by or on behalf of Marana shall
relieve Developer from its obligation to do and complete the Work in
accordance with this Agreement. If at any time before the final completion
and acceptance of the Work, any part of the Work is found to be defective
in any way, or in any way fails to conform to this Agreement, Marana is
hereby expressly authorized to reject or revoke acceptance of such
defective or deficient Work and require Developer to repair, replace, or
make good on such defective Work. Marana specifically reserves the
right to withhold approval and to forbid connection of the Water Facilities
constructed pursuant to this Agreement to Marana's water utility system
unless such Water Facilities have been constructed in accordance with
the Plans and Specifications approved by Marana and are satisfactory to
Marana upon inspection and testing. Developer agrees that it will
promptly correct all defects and deficiencies in construction, materials,
and workmanship upon request by Marana made subsequent to
inspections by Marana.
2.8 Chanqe Orders. In the event that Developer makes (or is desirous of
making) any material changes to the design of the Water Facilities which
are to be constructed in accordance with the Water Plans referred to in
Exhibit "B" to this Agreement, Developer shall (a) obtain Marana's prior
written consent to such material changes or modifications, (b) pay to
Marana a reasonable fee for its time in reviewing such material changes
or modifications, and (c) pay the additional cost of construction associated
with the same, if any.
2.9 Invoices. Developer agrees to furnish Marana, within thirty (30) days after
completion of construction, copies of all Developer, subcontractor, vendor
and all others invoices for all engineering and other services, materials
purchased, materials installed, construction performed, equipment
provided and all else done directly in connection with construction
pursuant to this Agreement at the actual cost thereof.
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2.10 Liens. Developer acknowledges its duty to obtain to the satisfaction of
Marana lien waivers and releases from all third parties providing labor,
materials or services hereunder. Developer hereby irrevocably waives
any rights it may now have or which it may acquire during the course of
this Agreement to record liens against Marana or its property. Developer
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shall also pay, satisfy and discharge all mechanics', material men's and
other liens, and all claims, obligations and liabilities which may be
asserted against Marana or its property by reason of, or as a result of, any
acts or omissions of Developer, its employees, agents, servants,
suppliers, or subcontractors, or the employees, agents, servants or
suppliers of its subcontractors, in connection with or relating to the
performance of this Agreement.
2.11 "As-Built" Plans. Developer agrees to furnish Marana, within thirty (30)
days after completion of construction, "as-built" drawings in both
handwritten and electronic format certified as to correctness by an
engineer registered in the State of Arizona showing the locations of all
water mains, hydrants, valves, and service connections to all structures
served from facilities constructed pursuant to this Agreement.
2.12 Risk. Developer shall carry on all activities associated with or comprising
the Work required hereunder at its own risk until the Water Facilities are
fully completed and accepted by Marana and will, in case of accident,
destruction or injury to the Water Facilities before such final completion
and acceptance of the. Water Facilities, replace or repair forthwith the
Water Facilities so injured, damaged or destroyed, to the satisfaction of
Marana and at Developer's own expense (except and to the extent that
such accident, destruction or injury is caused or contributed to by the
Town).
2.13 Liability. Developer hereby assumes all of the responsibility and liability
for injury or death of any person, or loss for damage to any property
contributed to or caused by the active or passive negligence of Applicant!
Developer, its agents, servants or employees in the execution of and
performance of the activities and Work contemplated herein or in
connection therewith. Accordingly, Developer will indemnify, appear and
defend and hold Marana, and its elected officials, employees, agents and
consultants (the "Town") harmless from and against claims, (except and to
the extent that the same are caused or contributed to by the Town) or
expenses, including penalties and assessments, to which they or any of
them may be subject to by reason of such injury, death, loss, claim,
penalty, assessment or damage, and in case any suit or other proceeding
which shall be brought on account thereof, Developer will assume the
defense of the Town at Developer's expense and will pay all judgments
rendered therein.
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(a) Marana hereby assumes all of the responsibility and liability for injury
or death of any person, or loss for damage to any property contributed to
or caused by the active or passive negligence of the Town caused by
interconnecting the Water Facilities to any off-site water facilities by
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Marana, and, in that event, Marana will indemnify, appear and defend and
hold Developer harmless from and against claims, (except and to the
extent that the same is caused or contributed to by Developer, its
employees, agents and consultants) or expenses, including penalties and
assessments, to which they or any of them may be subject to by reason of
such injury, death, loss, claim, penalty, assessment or damage, and in
case any suit or other proceeding which shall be brought on account
thereof, will pay all judgments rendered therein.
2.14 Insurance. Developer agrees to procure and maintain all of the insurance
policies described below and cause Marana to be endorsed as an
"additional insured" thereon, including insurance covering the obligations
assumed by Developer under subparagraphs (a), (b) and (c) hereof.
Such coverages shall be in amounts adequate to cover the risk
commensurate with the work to be performed under this Agreement.
Certificates evidencing said insurance and status of Marana shall be
provided to Marana.
(a) Workers' Compensation Insurance. Worker's compensation and
occupational disease and disability compensation in the benefit
amounts as required by the laws and regulations of the State of
Arizona;
(b) Liability Insurance. Comprehensive general liability insurance,
including operations and protective liability coverages. When the
work to be performed requires blasting, Developer's insurance shall
specifically cover that risk; and
(c) Automobile Insurance. Comprehensive automobile liability
insurance covering all owned and non-owned automobiles and
trucks used by or on behalf of Developer, in connection with the
work.
2.15 Easements. For the purposes of this paragraph, the provisions of Marana
Code ~ 14-3-7 and any successor or amendatory provisions are
incorporated herein as though set forth in full and Developer, except to
the extent to do so would be inconsistent with the provisions thereof, is
deemed for the purposes hereof to be the Applicant/Customer/Developer
described therein. Developer shall provide to Marana recordable
easements and required surveying, over, under, and across all portions of
the main and pipeline routes as may be necessary to serve each parcel or
lot within the Property. If development of the Property involves road
construction, all roads and drainage ways will be brought to grade by
Developer prior to the commencement of the installation of the Water
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Facilities. No pavement or curbs shall be installed prior to completion of
the Water Facilities.
2.16 Service Lines. Valves. Meters and Meter Service. Developer shall install,
to Marana specifications, automated meters, sensors, and the other
necessary equipment for automated meter reading for all water services
on the Property. For the purposes of this paragraph, the provisions of
Marana Code 914-3-6 and any successor or amendatory provisions are
incorporated herein as though set forth in full and Developer, except to
the extent to do so would be inconsistent with the provisions thereof, is
deemed for the purposes hereof to be the Applicant/Customer/Developer
described therein.
2.17 No Permanent Structures on Easements. No permanent structures (i.e.,
masonry walls, fences, etc.) shall be constructed on or through a water
easement without the express written consent of Marana. For the
purposes of this paragraph, the provisions of Marana Code 914-3-7 and
any successor or amendatory provisions are incorporated herein as
though set forth in full and Developer, except to the extent to do so would
be inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the Applicant/Customer/Developer described therein.
2.18 Title. All materials installed, Water Facilities constructed and equipment
provided by Developer in connection with construction of the Water
Facilities under this Agreement and the completed facilities as installed
shall, upon Marana's written acceptance of the same, become the sole
property of Marana, and full legal and equitable title thereto shall then be
vested in Marana, free and clear of any liens, without the requirement of
any written document of transfer to Marana or further acceptance by
Marana. Developer agrees to execute or cause to be executed promptly
such documents as legal counsel for Marana may request to evidence
such conveyance of good and merchantable title to said Water Facilities
free and clear of all liens.
3. COSTS OF CONSTRUCTION OF WATER FACILITIES
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3.1 Developer shall, at Developer's sole cost and expense, install all the
Water Facilities shown on the approved Plans and Specifications, and
shall hold Marana free and harmless from any claim for the construction
costs or any defects in such Water Facilities. For the purposes of this
paragraph, the provisions of Marana Code 914-4 and 914-5 and any
successor or amendatory provisions are incorporated herein as though
set forth in full, except to the extent to do so would be inconsistent with
the provisions thereof, is deemed for the purposes hereof to be the
Applicant/Customer/Developer described therein.
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3.2 Upon request by Marana and direction, Developer shall, at Developer's
sole cost and expense, make any and all alterations to any existing water
distribution system, either on-site or off-site, necessitated by paving,
drainage, or other improvements caused by the development of the
Property.
3.3 The Water Facilities shall be transferred to the ownership of Marana upon
completion and acceptance by Marana. "Notwithstanding the foregoing,
Developer retains any interest in the parcels and tracts described hereon,
only for purposes of any acquisition of public infrastructure described in
the Vanderbilt Farms Development, Financing Participation and
Intergovernmental Agreement by and among the Town of Marana,
Arizona, the Vanderbilt Farms Community Facilities District, and the
Developer." Developer shall be responsible for all costs of operating,
repairing, replacing and maintaining the Water Facilities that exceed the
revenues generated through Marana's provision of water service to the
Property, until a rate analysis methodology has been adopted, mutually
accepted, and performed by Marana showing that the Water Facilities and
Water System are financially self-sustaining. Marana shall perform such
analysis not less than annually and inform Developer regarding the results
thereof.
3.4 Marana shall collect connection charges and installation charges for each
potable and non-potable connection made on the Property in accordance
with Marana Town Code, Paragraph 14-7-2, as amended from time to
time. In consideration of Developer's construction of the Water Facilities
and Water System necessary for Marana to provide water service to the
Property, the Developer, if not the Home Builder, Marana will reimburse
Developer a portion of the connection charges actually collected by
Marana for each initial potable connection made within the Property as
follows:
(a) Five Hundred Dollars ($500) for each 5/8" x 3/4" meter and larger
size meters up to and including two-inch (2") meters;
(b) The connection charge actually collected by Marana for each meter
larger than two inches (2"), less costs incurred by Marana in
making the connection (such as meter cost, labor, materials, etc.),
but not included within a separate installation charge actually
collected by Marana for the installation of the connection.
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(c) In no event shall this reimbursement obligation (i) apply to any
installation and connection fee collected during any period which
Developer is in breach of this Agreement, (ii) exceed a cumulative
amount of One Million Six Hundred Thousand dollars ($1,600,000)
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(iii) exceed the amount actually paid to Marana as connection
charges, less any cost actually expended by Marana for materials
and labor (e.g., the cost of the meter, labor, materials, etc.) above
installation charges collected by Marana as a condition to Marana
making potable water service available for the first time to the
property line of each parcel for which the connection charge was
paid or (iv) apply to any non-potable meters installed on the
Property.
(d) Marana shall make reimbursement payments due to Developer
pursuant to this Subparagraph 3.4 on or before January 31 and
July 31 of each year for the period ending December 31 and June
30 respectively. The agreement to make reimbursements will
automatically terminate on the tenth (10th) anniversary of this
Agreement, subject to the continuing obligation to pay to Developer
any reimbursements accrued, but unpaid, as of the tenth (10th)
anniversary.
4. SECURITY REQUIREMENT
4.1 In accordance with Arizona Revised Statutes and the Marana Municipal
Code, this Agreement is contingent upon Developer furnishing Marana
with such security as may be appropriate and necessary and as may be
normal and customary as determined by the Marana Utility Director, to
assure Marana that Developer will perform all the Water Facilities and
Water System construction described above and all other obligations now
existing or accruing under this Agreement.
5. WATER SERVICE; WATER RIGHT
5.1
For the purposes of this paragraph, the provisions of Marana Code S14-5
and any successor or amendatory provisions are incorporated herein as
though set forth in full and Developer, except to the extent to do so would
be inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the Applicant/Customer/Developer described therein.
Marana shall be under no obligation to provide water utility service to
Developer or the Property until each and every condition of this
Agreement has been met and satisfied. Marana agrees that upon receipt
of all applicable approvals and satisfaction of all of Developer's obligations
under this Agreement that it will then provide water utility service as
requested to and within the Property in accordance with its rules,
regulations and ordinances governing such water service, as such rules,
regulations and ordinances may, from time to time, be amended.
Commencement of service to the Property by Marana shall not waive any
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obligation of Developer under this Agreement nor preclude Marana from
withholding or terminating water service to Developer, the Property or any
portion thereof until the Developer is in full compliance with this
Agreement.
5.2 Developer agrees to assign to Marana, as a condition of Marana providing
water utility service, every portion of its Irrigation and Type 1 Nonirrigation
Grandfathered Groundwater Rights and Type II Non-Irrigation
Grandfathered Rights as those terms are defined by law, as may be
appurtenant to lands conveyed and dedicated to Marana in connection
with the development of the Property. Developer agrees to execute and
deliver all forms necessary to affect the transfer of these water rights to
Marana concurrently with such dedication, pursuant to the projects
phasing.
5.3 Marana will provide the State of Arizona Designation of Assured Water
Supply status for the Property upon acceptance of the Property into
Marana's service area by the Central Arizona Groundwater
Replenishment District (CAGRD). Developer shall execute any
agreements and file such covenants and restrictions, as Marana may
deem appropriate to include the Property in Marana's CAGRD service
area. Without limiting in any manner Marana's right to specify the terms
and conditions governing future water service to the property, but, as a
condition precedent to the property's right to receive water service from
Marana, the owner(s) of the Property shall pay all groundwater
replenishment fees and costs incurred in providing water service to the
Property. Marana, in its sole discretion, may determine the method of
recovering such replenishment fees and costs including, without limitation,
through the property tax bill, the water bills, and/or the impact fees of
those customers living within the Property.
6. TERMINATION OF AGREEMENT
6.1 In the event Developer does not complete all of the Water Facilities and
Water System construction described in Article 2, within three (3) years
from the date of this Agreement, except as otherwise agreed on Exhibit
"C" hereof, this Agreement shall be null and void, canceled and of no
further force and effect, except to the extent Marana in its sole discretion
either (i) extends this time period in writing or (ii) accepts all or a portion of
the Water Facilities, in which case this Agreement shall remain in full force
and effect for the extension period or as to the Water Facilities accepted
by the Town; provided, however, no reimbursements will be paid pursuant
to Subparagraph 3.4 hereof.
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FCD Marana Venture i.doc
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03/06/2003
6.2 Pursuant to A.R.S. S 38-511, Marana may cancel this contract within three
(3) years after its execution, without penalty or further obligation if any
person significantly involved in initiating, securing, drafting or creating this
Agreement on behalf of Marana is, at any time while this Agreement or
any extension of this Agreement is in effect, an employee or agent of
Developer in any capacity or consultant to Developer with respect to the
subject matter of this Agreement. Cancellation under this Paragraph by
Marana shall be effective when written notice from Marana is received by
Developer unless the notice specifies a later time. In addition to the right
to cancel as provided herein, Marana may recoup any fee or commission
paid or due to any person significantly involved in initiating, negotiating,
securing, drafting or creating this Agreement on behalf of Marana from
Developer arising as the result of this Agreement.
7 . INDEMNIFICATION
7.1 With respect to the Water Facilities and Water System constructed
pursuant to this Agreement, for a period of one (1) year following
Marana's acceptance of the facilities to be dedicated to Marana
hereunder, Developer agrees to indemnify, appear, defend and hold
harmless Marana and its employees (as previously defined) from any and
all claims or causes of action which may be asserted against Marana for
negligent design or construction of the Water Facilities, and from claims
that may be asserted against Marana for inadequate fire protection
capacity arising from the negligence of Developer or its employees or
agents.
8. NOTICE
8.1 Communications hereunder shall be sent to the parties at the following
addresses or to such other addresses as the parties may advise in writing:
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To Marana:
Utilities Director
Town of Marana Water Department
12775 North Sanders Road
Marana, Arizona 85653-9723
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Mr. Dan Hochuli, Esq.
Town Attorney
220 East Wetmore Road, Suite 110
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FCD Marana Venture I.doc
Page 13
03/06/2003
And copy to:
To Applicant:
And copy to:
Tucson, Arizona 85705
Martinez & Curtis, P.C.
Attn: William P. Sullivan
2712 N. 7th Street
Phoenix, Arizona 85006-1090
FCD Marana Venture I, L.L.C.
c/o Mr. Don Edwards
Edwards, Largay & co., PLC
333 East Osborne, Suite 260
Phoen~,Arizona 85012
Mr. Kyle B. Hettinger, Esq.
Brown & Bain
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012
9. SEVERABILITY
9.1 In the event any portion of this Agreement shall be determined to be
invalid, such invalidity shall not render void any remaining portions of this
Agreement, which can be given effect, and they shall remain in force and
effect.
10. ASSIGNMENT
10.1 This Agreement shall be binding upon and for the benefit of the heirs,
administrators, executors, successors and assigns of Marana and
Developer.
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11. MISCELLANEOUS
11.1 This instrument (i) implements Paragraph 2.3 of the Development
Agreement between Marana and Vanderbilt Farms, L.L.C., an Arizona
limited liability company, dated ,2003 (and the
"Development Agreement"), (ii) contains the sole and only agreement of
the parties relating to the subject matter of this Agreement, and (iii)
correctly sets forth the rights, duties and obligations of each to the other
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FeD Marana Venture I.doc
Page 14
03/06/2003
as of its date. Any prior agreements, promises, negotiations or
representations relating to the subject matter of this Agreement 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 written agreement signed
by the parties.
11 .2 All executed agreements shall remain on file in Marana offices and shall
be made available for public review upon request.
11.3 This Agreement is entered into under and shall be governed by the laws
of the State of Arizona.
11 .4 This Agreement has been arrived at by negotiation and shall not be
construed against any party to it or against the party who prepared the
last draft.
11.5 Captions and headings are for index purposes only and shall not be used
on construing this Agreement.
11.6 BEFORE THIS AGREEMENT SHALL BECOME EFFECTIVE AND
BINDING UPON EITHER MARANA OR DEVELOPER, IT MUST (i) BE
APPROVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, (ii) have all exhibits attached hereto (except Exhibit B to be
attached after recording) initialed by the parties, and (iii) be completed
with all blanks filled in. In the event that it is not so approved, this
Agreement shall be null and void and of no force or effect whatsoever.
The remedies provided in this Agreement in favor of Marana shall not be
deemed its exclusive remedies but shall be in addition to all other
remedies available to the Parties at law or in equity. No waiver by Marana
of any breach by Developer of any provision of this Agreement nor any
failure by Marana to insist on strict performance by Developer of any
provision of this Agreement shall in any way be construed to be a waiver
of any future or subsequent breach by Developer or bar the right of
Marana to insist on strict performance by Developer of the provisions of
this Agreement in the future. Developer is an independent contractor and
not an agent or employee of Marana.
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11.7 This Agreement, and all rights and obligations hereunder, including those
regarding water service to Developer, shall be subject to all provisions of
the Municipal Code of the Town of Marana and all applicable rates, fees,
charges and tariffs of the Marana Water Utility as approved by the Mayor
and Council 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.
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FCD Marana Venture I.doc
Page 15
03/06/2003
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and
year first above written.
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FeD Marana Venture I.doc
Page 16
03/06/2003
By:
Its: Manager
ACKNOWLEDGMENT
8) OFFICIAL SEAL
DEBORAH ANN AHL
NOTARY PUBUC - STATE OF ARIZONA
STATE OF ARIZONA ) .'. My~~=2005
COUNTY OFV n.t,,('~ 55.
This instrument was acknowledged before me this day of ~ay of IvnltL,~t!.ju
. 2003, by-i)(J /1fil,ttYJ. idultWt.J as ltY1a rV:;-f- LJ
of r~7J l{nti~d,n4U1'Ci:uv 7-J('t~s Developer.
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Notary Public
My Commission Expires:
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FeD Marana Venture I.doc
Page 17
03/06/2003
EXHIBIT "A"
LOCATION MAP OF THE DEVELOPMENT
WITH LEGAL DESCRIPTION
[Please attach the location map of the development behind this cover sheet.]
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1~/07/2001 09:53 FAX 520 623 5762
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LAWYERS TITLE AZ
f4I 009/015
Exhibit A
CASE NO. 408051
Parcel I
That portion of the South Half of Section 26, Township 11 South. Range 11 East, Gila and Salt River Base and
Meridian, Pima County, Arizona, lying Southerly and Westerly of that portion conveyed to Cortaro-Marana
Irrigation District in Docket 1985 at page 243.
EXCEPT the South 30 feet within the right of way of Grier Road #112 (Moore R.oad) as shown in Book 2 of Road
Maps at page 126;
AND EXCEPi the West 30 feet within the right of way of Postvale Road #28 as shown in Book 1 of Road Maps at
page 70.
AND EXCEPT that portion conveyed to the Town of Marana by Deed recorded in Docket 9014 at page 1524, more
particularly described as follows:
BEGINNING at the Northwest comer of the Southwest Quarter of said Section 26, Township 11 South, Range 11
East;
THENCE North 89 degrees 45 minutes 37 seconds East, along the North line of said Southwest Quarter of
Section 26, a distance of 1605,05 feet to a point in the Southwest right of way line of Interstate Highway 10;
THENCE South 49 degrees 36 minutes 21 seconds East, along said southwest right of way line, 47.90 feet;
THENCE Northwesterly along a curve concave to the South having a radius of 25.00 feet and a central angle of
41 degrees 38 minutes 02 seconds, 18.17 feet;
THENCE South 89 degrees 45 minutes 37 seconds West parallel to and 25.00 feet South of the North line of said
Southwest Ql,tarter, 1569.80 feet;
THENCE Southerly along a curve concave to the Southeast having a radius of 25.00 feet and a central angle of
89 degrees 51 minutes 26 seconds, 39.21 feet;
THENCE South 89 degrees 45 minutes 37 seconds West, 30.00 feet to a point in the West line of said Southwest
Quarter of Section 26j
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THENCE North 0 degrees 05 minutes 49 seconds West, 49.94 feet to the POINT OF BEGINNING, EXCLUDING
THEREFROM any portions previously dedicated as public right of way.
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Parcel II
The South Half of Section 27, Township 11 South, Range 11 East, Gila and Salt River Base and Meridian, Pima
County, Arizona.
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EXCEPT the East 30 feet within the right of way of postvale Road #28 as shown in Book 1 of Road Maps at page
70;
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/2/07/2001 09:54 FAX 520 623 5762
LAWYERS TITLE AZ
@010/015
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AND EXCEPT the South 30 feet within the right of way of Grier Road #112 (Moore Road) as shownin Book 2 of
Road Maps at page 127;
AND EXCEPT the West 30 feet within the right of way of Grier ROi\d #117 (Sandario Road) as shown in Book 2 of
Road Maps at page 174;
AND EXCEPT the North 25 feet within the right of way of Barnett ~oad as shown in aoak 14 of Raa,d Maps at
page 21.
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EXHIBIT "B"
INCORPORATION BY REFERENCE OF THE
PLANS AND SPECIFICATIONS OF THE
WATER UTILITY FACILITIES TO BE CONSTRUCTED HEREUNDER
Reference is hereby made to those certain 24" X 36" engineering drawings of the Water
Facilities Plans. Copies of such engineering drawings may be reviewed at Marana's
offices. Such engineering drawings may be more specifically described as follows:
[Please provide a detailed description of the Plans and Specifications including the date
and the code number of the Plans and the name of the Engineering firm, which
prepared the same.]
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EXHIBIT "e"
PHASING ON-SITE WATER DISTRIBUTION SYSTEM
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EXHIBIT "D"
ITEMIZED BREAKDOWN OF THE ESTIMATED COST OF THE
WATER UTILITY FACILITIES TO BE CONSTRUCTED HEREUNDER
[Please attach a line-by-line itemized breakdown of
the Estimated Cost of the Water Utility Facilities
to be installed in accordance with this Agreement
behind this cover sheet]
Please set forth the total expense the Developer/Applicant is to incur for the construction.
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EXHIBIT "E"
ACTUAL COST OF WATER FACILITIES
[To be Attached Forthwith Upon Issuance of Same.]
Please set forth the total expense the Developer/Applicant is to incur for the construction.
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FCD Marana Venture I.doc
Page 22
03/06/2003
#
EXHIBIT "F"
SYSTEM OVERSIZE AGREEMENT
Water Fill and Supply Lines:
1. Marana acknowledges that the line capacity requirement for the water fill
line and water supply line required pursuant to section 2.1 (a) (i) of the
Agreement, is twelve inches (12"). Marana agrees to refund to developer,
pursuant to Marana Town Code section 14-4-3 (8), the difference in the
cost of the twelve-inch (12") diameter lines to be installed pursuant to
sections 2.1 (a) (i) and the eight-inch (8") diameter line capacity
requirements.
2. Marana agrees to establish an oversize recovery charge pursuant to
Marana Town Code section 14-4-3 (C), to be assessed upon "non-
participating property" benefiting from the oversize of the fill and supply
lines. Any oversize recovery charges levied pursuant to this paragraph 2
shall be paid to Developer pursuant to Town Code section 14-4-3 (C) as a
refund of the cost of constructing the oversize facilities as set forth in
paragraph 1 above.
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FeD Marana Venture I.doc
Page 23
03/06/2003