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HomeMy WebLinkAbout01/04/05 Council Packet Back-UpTOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 1 TO: FROM: SUBJECT: MAYOR AND COUNCIL Roy Cuaron, Finance Director PUBLIC HEARING: Relating Limitation (Home Rule Option) to the Alternative Expenditure DISCUSSION In 1985, and every four years thereafter, the residents of the Town of Marana voted to adopt a local alternative expenditure limitation, also known as the Home Rule Option. Under the Home Rule Option, total expenditures for the Town of Marana are determined at the time of budget adoption and may exceed those imposed by the State of Arizona. Without the Home Rule Option, Town expenditures may not exceed those set forth by the State. The State's limitation is determined by an expenditure base that was established in 1979-80, adjusted for inflation and population growth over the years. When approved by the voters, the Home Rule Option is in effect for four consecutive years. With Council approval, residents of the Town will be asked to vote on the Home Rule Option on May 17, 2005. If the ballot measure passes, the Home Rule Option will take affect for fiscal years 2005-2006 through 2008-2009. Voter approval of the Home Rule Option is critical to the Town of Marana and its ability to provide services to its residents. To illustrate, consider the following: Statelmposed Limitation Actual Expenditures Actual Revenues FY 01-02 $14,032,757 $37,377,932 $37,598,259 FY 02-03 $14,909,010 $39,722,680 $37,189,335 FY03-04 $16,182,662 $45,092,565 $49,425,159 FY 04-05 $17,500,092 $52,041,100(est.) $63,624,400 (est.) The above table clearly illustrates the importance of the Home Rule Option. In each of the four years, without the Home Rule Option, the Town would have been mandated to cut expenditures (services) to comply with the state imposed limitation despite receiving revenues well in excess of the limitation. For fiscal years 2005-2006 through 2008-2009, the State's expenditure limitation base is expected to be $12,808,558, $13,942,130, $15,121,685 and $16,447,434, respectively. With the Home Rule Option, total expenditures for the same time period are expected to be $72,088,120, $73,823,137, $75,630,106 and $77,515,110, respectively. The attached worksheets provide a more detailed analysis of the aforementioned calculations. Home Rule Option 12/28/2004; 9:36 AM; RC Prior to scheduling an election for Home Rule, the Council must conduct two public hearings. This meeting constitutes the first of two. The second public hearing/meeting will be held on January 18, 2005, after which the Council will be asked to adopt a resolution authorizing the Home Rule Option to be submitted to the voters of the Town of Marana. No action is required of Mayor and Council at this time other than to receive public input. None. None. RECOMMENDATION SUGGESTED MOTION Home Rule Option -2- 12/28/2004; 9:36AM; RC ALTERNATIVE EXPENDITURE LIMITATION (Home Rule Option) SUMMARY ANALYSIS The voters of the Town of Marana, Arizona in 1985 adopted an Alternative Expenditure Limitation/Home Rule Option. The purpose of this election is for the continued use of the Home Rule Option. Pursuant to the Arizona State Constitution, the Town of Marana seeks voter approval to adopt a Home Rule Option to apply to the Town of Marana for the next four years beginning in the 2005-2006 fiscal year. Under a Home Rule Option if approved by the voters, the Town of Marana estimates it will be allowed to expend approximately$72,088,120 in 2005-2006, $73,823,137 in 2006-2007, $75,630,106 in 2007-2008 and $77,515,110 in 2008-2009. With approval of the Home Rule Option, the Town of Marana will utilize the expenditure authority for all local budgetary purposes including general operations, development services, public safety, parks and recreation, public works, water, airport and Capital Improvements Plan. Under the state imposed limitation, after considering the constitutionally allowed exclusions, the Town of Marana estimates it will be allowed to expend approximately $12,808,558 in 2005-2006, $13,942,130 in 2006-2007, $15,121,685 in 2007-2008 and $16,447,434 in 2008-2009 for the operation of government business. The amount of revenue estimated to be available to fund the operation of the Town of Marana is $72,088,120 in 2005-2006, $73,823,137 in 2006-2007, $75,630,106 in 2007-2008 and $77,515,110 in 2008-2009. These revenue estimates are the same under the Home Rule Option or the state imposed limitation. Any and all dollar figures presented in this summary are estimates only and are based upon information available at the time of preparation of this analysis. The budget and actual expenditures in any of the four years may be more or less than the expenditures noted above depending upon available revenue. If no Alternative Expenditure Limitation is approved, the state imposed limitation will apply to the Town of Marana. Summary Analysis Worksheet POPULATION FACTOR COMPUTATION Prior Fiscal 1978 Population Fiscal Year Year Population .'- Population = Factor 2005-2006 23,520 1,425 16.5053 2006-2007 26,075 1,425 18.2982 2007-2008 28,680 1,425 20.1263 2008-2009 31,550 1,425 22.1404 STATE IMPOSED EXPENDITURE LIMITATION Projected Total Expenditures 1979-80 Population Inflation Expenditure Estimated Under State-Imposed Fiscal Year Base Limit X Factor X Factor = Limitation + Exclusions = Limit 2005-2006 $202,239 16.5053 2.3641 $7,891,402 $4,917,157 $12,808,558 2006-2007 $202,239 18.2982 2.4068 $8,906,627 $5,035,503 $13,942,130 2007-2008 $202,239 20.1263 2.4477 $9,962,929 $5,158,757 $15,121,685 2008-2009 $202,239 22.1404 2.4924 $11,160,101 $5,287,334 $16,447,434 ALTERNATIVE EXPENDITURE LIMITATION (Home Rule Option) DETAILED ANALYSIS Pursuant to the Arizona State Constitution, the Town of Marana as authorized by Resolution 2005-XX passed on January XX, 2005 will seek voter approval to adopt an Alternative Expenditure Limitation (Home Rule Option) to apply to the Town of Marana for the next four years beginning in 2005-2006. Under a Home Rule Option if approved by the voters, the Town of Marana estimates it will be allowed to expend approximately $72,088,120 in 2005-2006, $73,823,137 in 2006-2007, $75,630,106 in 2007-2008 and $77,515,110 in 2008-2009. With approval of the Home Rule Option, the Town of Marana will utilize the expenditure authority for all local budgetary purposes including general operations, development services, public safety, parks and recreation, public works, water, airport and Capital Improvements Plan. We estimate that the expenditures for the next four years under the Home Rule Option will be as follows: ESTIMATED AMOUNTS TO BE EXPENDED IN SPECIFIC AREAS Purpose 2005-2006 2006-2007 2007-2008 2008-2009 General Operations $8,838,893 $9,051,628 $9,273,185 $9,504,309 Development Services $4,480,564 $4,588,402 $4,700,712 $4,817,873 Public Safety $6,067,187 $6,213,212 $6,365,293 $6,523,941 Parks & Recreation $1,853,919 $1,898,539 $1,945,010 $1,993,487 Public Works $1,955,354 $2,002,415 $2,051,428 $2,102,558 Water $1,955,400 $2,002,463 $2,051,477 $2,102,608 Airport $244,238 $250,116 $256,238 $262,625 Capital Improvement Plan $46,692,565 $47,816,362 $48,986,763 $50,207,709 Total Expenditures $72,088,120 $73,823,137 $75,630,106 $77,515,110 If approved, the expenditures authorized will be funded from revenues obtained from federal, state and local sources. It is estimated that the amount of revenue from each source for the next four years will be as follows: ESTIMATED AMOUNTS OF REVENUE FROM EACH AND ANY SOURCE Source 2005-2006 2006-2007 2007-2008 2008-2009 Federal $4,917,157 $5,035,503 $5,158,757 $5,287,334 State $29,297,609 $30,002,743 $30,737,121 $31,503,213 Local $37,873,355 $38,784,890 $39,734,228 $40,724,564 Total Revenues $72,088,120 $73,823,137 $75,630,106 $77,515,1113 In determining the revenue sources to fund the authorized additional expenditures under the Alternative Expenditure Limitation, it is assumed that the federal, state and local revenues received by the Town of Marana will continue to be available in 2005-2006 proportionately to each other as they have for the past three years. Their continued proportionate availability is also assumed for the next three consecutive years following 2005-2006. Any and all dollar figures shown in this analysis are estimated figures only and are based upon information available at the time of preparation of this report. The budgets and actual expenditures in any given year may be more or less than the figures noted above depending on available revenues. The actual expenditure limitation for each fiscal year shall be adopted as an integral part of the budget for that fiscal year. TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 2 TO: FROM: SUBJECT: MAYOR AND COUNCIL Dick Gear, Community and Economic Development Director Public Hearing. Saguaro Springs West Annexation: Relating to Annexation; consideration of the Town of Marana's desire to annex approximately 22 acres adjacent to Twin Peaks Road, immediately west of the Saguaro Springs development project. DISCUSSION The sole property owner desires to be annexed into the Town for the purposes of adding twenty- two acres to the Saguaro Springs project. Pursuant to filing a blank petition with the Pima County Recorder's Office, this Public Hearing is mandated by State Statutes to be held within thirty days following such filing. All owners of real and personal property within the annexation area have been notified of this hearing, and have been given the opportunity to address the Mayor and Council with their concurrence or objections to this annexation. This property lies within Section 13, Township 12 South, Range 11 East, Gila and Salt River Meridian. Accompanying this blue sheet are the legal description of the proposed annexation, the official map of the annexation area, and another map showing the location of the annexation area and the current zoning of the surrounding area. RECOMMENDATION No action is required - Public Hearing. SUGGESTED MOTION No action required. BLU Sag. Springs. West Annexation.doc LEGAL DESCRIPTION' OF A'PARCEL FOR ANNEXATION TO THE TOWN OF MARANA Al! that parco! as described in Docket 12208, Page 1961, Pima County Records together with that porticn of Twin Peaks Road lying South of and contiguous with said parcel, being a portion of Section 13, Township 12 South, Range 11 East, Gila and Salt River Meridian, Pims County, Arizona, and being more particularly described as follows: COMMENCING at a 1 ½" Lead Capped Pipe properly marked and monumenting the Southeast corner of said Section 13; Thence along the East line of said Section 13 North 00°08'05" West, a distance of 75.00 feet to the POINT OF BEGINNING; Thence along a line 75 feet north of and parallel to the South line of said Section 1 3, South 89°57'50'~ West, a distance of 1,142.34 feet; Thence North 38°23'46" East, a distance of 1,833.81 feet, to the East line of Section 13 to which a 2" Lead Capped Pipe properly marked and monumenting the West one quarter of said Section 18 bears North 00°08'05' West, a distance of 1,129.3i feet; Thence along said East'line of Section 13 South 00008'05'' East, a distance of 1,436.51 feet to the POINT OF BEGINNING; TOGETHER WITH that portion of Twin Peaks Road lying So'utherly and adiacent to said parcel. Said parcel contains 21.69 acres, more or less. David M. Seese, RLS August 17, 2004 Revised September 1, 2004 Revised October 7, 2004 Prepared for and on behalf of Stantec Consulting Inc. Project Number: 185621934 - 215 LA,V,$E£ T LANE ,gARANA LI~,Ii: EAST OUA,ET~R ~u,~,%,e SECTION i5 0~ ~'~Z 04 '"," ~S SK~CH IS FOR ~-~ff P'JRPO~ CNLY &ND ~ NOT / / TO'/F?; S'- ~u '.:-?2 35 Auaus:. 2004 185S21.~3'-. - 2!5 CE--nt/Proj¢¢, EXHIBIT OF PORTION O; SECqO,,",~ 13 T12S, R1 1E, GILA Ah'C _~ALT RIVER MERIDIAN PIMA COUNt, AR!ZC~. 1.0 Legal Description Exhibit PARCEL FOR ANNE~&TION TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 3. a TO: FROM: SUBJECT: MAYOR AND COUNCIL Barbara Berlin, Planning Director PUBLIC HEARING: Ordinance No. 2004.23: Relating to Development; rezoning 107-acres of land from "A" to zone "R-6" on property located south of Barnett Road and east of Sanders Road, commonly known as Payson Farms. This item was continued from December 7, 2004. DISCUSSION The Marana Planning Commission held a public heating on this application the regular meeting of September 15, 2004, and voted 4-0 (Vice-Chair Clanagan and Commissioner Hestwood were absent and Commissioner Post declared a conflict of interest) recommending approval to the Mayor and Council. Tri-Marana Development, represented by DLN Consulting, is seeking approval of a rezoning for a 107-acre site to develop a mixed density residential neighborhood with no more than 367 site- built homes (3.42 RAC). The subject site is located generally south of Barnett Road, east of Sanders Road in a portion of Section 28, Township 11 South, Range 11 East. The subject property was part of the Town's 1977 incorporation. The Council continued this item from the December 7, 2004 regular meeting pending completion of a development agreement. GENERAL PLAN AND THE NORTHWEST MARANA AREA PLAN The Town of Marana General Plan, as ratified March 11, 2003, designates the subject property's future development land use as Medium Density Residential. This designation allows for single family detached residences at a density range of 3.1 - 8.0 dwelling units per acre. The designation is intended for land where an existing capacity of infrastructure is in place or where extension of infrastructure is systematic and consistent with the Growth Areas Plan. The Northwest Marana Area Plan designates the property as Residential/Commercial Village. The plan allows for 4 residences per acre; the rezoning proposes 3.42 residences per acre. The Area Plan requires a development monitoring program to be submitted with the preliminary plat. The Northwest Marana Area Plan Residential/Commercial Village concept incorporates goals, objectives, policies and standards to create a neighborhood identity that encourages flexibility in 120704 PCZ-04034 Payson Farms Rezoning.doc design while preserving the character. The proposed project reflects the Village concept by incorporating a rural theme, recreational facilities, landscaping and design treatments and density transition throughout the subdivision. TRAFFIC CIRCULATION The main access to the site will be from Clark Farms Boulevard, a collector roadway. Access to Clark Farms Boulevard will be made initially from Sanders Road until Tangerine Farms Loop Road is completed. Once Tangerine Farms Loop Road is completed Clark Farms Road will intersect it, creating a secondary access point. Until that time a temporary secondary access point will be provided by way of one of the following existing roads: Barnett Road, Sanders Road or Moore Road. A recommended condition to this rezoning is that the temporary access point be in place by issuance of the twenty-fifth residential building permit (condition #3). INFRASTRUCTURE The project will be served by the Marana Water Department; the developer will be responsible for installing the project's water distribution system. Pima County Wastewater expressed no objections to this rezoning and a Sewer Service Agreement has been executed by Payson Farms. Tucson Electric Power, Qwest Communications, and Comcast Cable will all provide service to the project. PARKS~ RECREATION The applicant proposes approximately 23.25 acres of open space. The active open space will include numerous amenities such as an integrated system of trails, tot lots, play fields and picnic areas. Onsite trails will connect to the Barnett Linear Park, as well as providing connection points to Rancho Marana to the East and Moore Road to the South. The development proposes two neighborhood parks, with the construction of the first park required prior to issuance of the 50th residential building permit, and the second park constructed prior to issuance of the 300th residential building permit. In addition, per the Development Agreement, the developer shall contribute an in-lieu fee of $1,000.00 per residential unit for development of an off-site regional public park and/or trail system. Improvements to the Barnett Linear Park/Drainage Channel will provide drainage while supporting recreation activities such as multi-use trails, that in turn will provide linkage to other parks and trails in the area. SCHOOL DISTRICT The proposed number of residential units could generate as many as 170 new students for the Marana School District. Per the Development Agreement the developer has agreed to contribute a fee of $1,200.00 per residential unit to mitigate the effects of the proposed development on the Marana Unified School District. PCZ-04034 Payson Farms Rezoning TC 010405.doc -2- LOT DIMENSIONS AND NUMBER As shown on the Tentative Development Plan (Exhibit II.B) the project shall be limited to no more than 367 lots. Further, the range of lot sizes shall be as follows: · 6050 square foot minimum - 180 lots · 6900 square foot minimum - 102 lots · 7800 square foot minimum - 85 lots RECOMMENDATION: The Planning Commission and staff recommend approval of Ordinance No. 2004.23 approving the Payson Farms rezoning, subject to the following conditions: RECOMMENDED CONDITIONS OF APPROVAL 1. Compliance with all provisions of the Town's codes and ordinances as current at the time of any subsequent development, including, but not limited to, requirements for public improvements. 2. This rezoning is valid for five years from the date of Town Council approval; if the developer fails to have a final subdivision plat recorded prior to the five years' the Town may initiate the necessary action to revert the property to the original zoning, upon action by the Town Council. 3. The applicant shall construct a temporary secondary access via Barnett Road or Sanders Road (pending completion of Tangerine Farms Loop Road construction) prior to the issuance of the twenty-fifth residential building permit. 4. The property owner shall not cause any lot split of any kind without the written consent of the Town of Marana. 5. The applicant shall submit a Traffic Impact Analysis with the preliminary plat. 6. The Developer shall dedicate, or cause to have dedicated, an additional 190' feet of Right of Way along the Western portion of Sanders Road and 90'of new Right of Way from Sanders Road East to the connection point of Rancho Marana for the construction of Clark Farms Road. 7. A water service agreement and a master water plan must be submitted by the Developer and accepted by the Utilities Director prior to the approval of the first plat by the Town Council. 8. The Developer shall develop a reclaimed water irrigation system, dedicated to the Town, to distribute irrigation water to all properties and recreation areas within this development. A sewer service agreement and master sewer plan must be submitted by the Developer and accepted by Pima County Wastewater Management and the Town Engineer prior to the approval of the first plat by the Town Council. 10. The applicant shall comply with all design standards and guidelines within the Marana Area Plan and Land Development Code with the first preliminary plat submittal. o PCZ-04034 Payson Farms Rezoning TC 010405.doc -3- 11. The project shall comply with the construction design standards regarding noise level reduction as stated in an 8/30/04 letter from the Marana Regional Airport. 12. Special landscape and design treatments shall be provided at project entry ways, as well as perimeter walls, which create an individual identity for the project and consistency with the Northwest Marana Area Plan. 13. The site shall be surveyed for archaeological resources before any ground disturbing activities take place. 14. The property owner shall transfer with the final plat, by the appropriate Arizona Department of Water Resources form, those water rights being IGR Type I or Type II to the Town of Marana providing designation of assured water supply and water service to said property. If Type I or Type II is needed on said property, the Town and developer/landowner shall arrive at an agreeable solution to the use of those water rights appurtenant to said land. 15. Prior to the issuance of a building permit and pursuant to Marana Ordinance No. 99.02 the property owner(s) within the Lower Santa Cruz River Levee Benefit Area shall enter into a Development Agreement with the Town of Marana to reimburse the Town for this project's proportionate share for the cost of construction of the levee. 16. Potential buyers shall be notified that the property is located within the flight path of the Northwest Marana Regional Airport. 17. Potential buyers shall be notified that some or all of the property in this rezoning is subject to an annual tax and assessment by Cortaro Marana Irrigation District and Cortaro Water Users' Association. 18. As per the July 28, 2004 Site Analysis and Tentative Development Plan, Exhibit II.B, the following range of lot sizes shall be provided on the plat: 6,050 square foot minimum - maximum 49% of the total lots · 6,900 square foot minimum - maximum 28% of the total lots 7,800 square foot minimum - minimum 23% of the total lots SUGGESTED MOTION I move to approve Ordinance No. 2004.23 with the recommended conditions. PCZ-04034 Payson Farms Rezoning TC 010405.doc -4- MARANA ORDINANCE NO. 2004.23 RELATING TO DEVELOPMENT; REZONING 107-ACRES OF LAND FROM "A" TO ZONE "R-6" ON PROPERTY LOCATED SOUTH OF BARNETT ROAD AND EAST OF SANDERS ROAD, COMMONLY KNOWN AS PAYSON FARMS. WHEREAS, Tri-Marana Development is the owner of approximately 107 acres of land generally located at the southeast comer of Barnett Road and Sanders Road, within Section 28, Township 11 South, Range 11 East, as depicted on Exhibit "A", attached hereto and incorporated herein by this reference; and WHEREAS, the Marana Planning Commission held a public hearing September 15, 2004 and voted 4-0 to recommend that the Town Council approve said rezoning, adopting the recommended staff conditions; and WHEREAS, the Marana Town Council heard from representatives of the owner, staff and members of the public at the regular Town Council meeting held January 4, 2005 and has determined that the rezoning is in conformity with the General Plan and should be approved, subject to conditions. NOW, THEREFORE, BE IT ORDAINED by the Mayor and Council of the Town of Marana, Arizona, as follows: Section 1. The zoning of approximately 107 acres generally located at the southeast comer of Bamett Road and Sanders Road, within Section 28, Township 11 South, Range 11 East is hereby changed from "A" (Small Lot Zone) to "R-6" (Single Family Residential/6000 sq. ft. minimum lot size). Section 2. The purpose of this rezoning is to allow the creation of a residential neighborhood subject to the following conditions: 1. Compliance with all provisions of the Town's codes and ordinances as current at the time of any subsequent development, including, but not limited to, requirements for public improvements. 2. This rezoning is valid for five years from the date of Town Council approval; if the developer fails to have a final subdivision plat recorded prior to the five years' the Town may initiate the necessary action to revert the property to the original zoning, upon action by the Town Council. 3. The applicant shall construct a temporary secondary access via Barnett Road or Sanders Road (pending completion of Tangerine Farms Loop Road construction) prior to the issuance of the twenty-fifth residential building permit 4. The property owner shall not cause any lot split of any kind without the written consent of the Town of Marana. Marana Ordinance No. 2004.23 Page 1 5. The applicant shall submit a TIA with the preliminary plat. 6. The Developer shall dedicate, or cause to have dedicated, an additional 190' feet of Right of Way along the Westem portion of Sanders Road and 90'of new Right of Way from Sanders Road East to the connection point of Rancho Marana for the construction of Clark Farms Road. 7. A water service agreement and a master water plan must be submitted by the Developer and accepted by the Utilities Director prior to the approval of the first plat by the Town Council. 8. The Developer shall develop a reclaimed water irrigation system, dedicated to the Town, to distribute irrigation water to all properties and recreation areas within this development. 9. A sewer service agreement and master sewer plan must be submitted by the Developer and accepted by Pima County Wastewater Management and the Town Engineer prior to the approval of the first plat by the Town Council. 10. The applicant shall comply with all design standards and guidelines within the Northwest Marana Area Plan and Land Development Code with the first preliminary plat submittal. 11. The project shall comply with the construction design standards regarding noise level reduction as stated in an 8/30/04 letter from the Marana Regional Airport. 12. Special landscape and design treatments shall be provided at project entry ways, as well as perimeter walls, which create an individual identity for the project and consistency with the Northwest Marana Area Plan. 13. The site shall be surveyed for archaeological resources before any ground disturbing activities take place. 14. The property owner shall transfer with the final plat, by the appropriate Arizona Department of Water Resources form, those water rights being IGR Type I or Type II to the Town of Marana providing designation of assured water supply and water service to said property. If Type I or Type II is needed on said property, the Town and developer/landowner shall arrive at an agreeable solution to the use of those water rights appurtenant to said land. 15. Prior to the issuance of a building permit and pursuant to Marana Ordinance No. 99.02 the property owner(s) within the Lower Santa Cruz River Levee Benefit Area shall enter into a Development Agreement with the Town of Marana to reimburse the Town for this project's proportionate share for the cost of construction of the levee. 16. Potential buyers shall be notified that the property is located within the flight path of the Northwest Marana Regional Airport. 17. Potential buyers shall be notified that some or all of the property in this rezoning is subject to an annual tax and assessment by Cortaro Marana Irrigation District and Cortaro Water Users' Association. 18. As per the July 28, 2004 Site Analysis and Tentative Development Exhibit II.B the following range of lot sizes shall be provided on the plat: Marana Ordinance No. 2004.23 Page 2 · 6,050 square foot minimum- maximum 49% of the total lots · 6,900 square foot minimum- maximum 28% of the total lots · 7,800 square foot minimum - minimum 23% of the total lots Section 3. All Ordinances, Resolutions and Motions and parts of Ordinances, Resolutions, and Motions of the Marana Town Council in conflict with the provisions of this Ordinance are hereby repealed, effective as of the effective date of Ordinance No. 2004.23. Section 4: If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 4th day of January, 2005. ATTEST: Mayor BOBBY SUTTON, JR. Jocelyn C. Bronson Town Clerk APPROVED AS TO FORM: Frank Cassidy Town Attorney Marana Ordinance No. 2004.23 Page 3 ARANA ¥OWN OF MARACA Payson Farmsl Rezone Subject Property CASE NO. z E] z m (n OORE PCZ-04034 Honea Heights 2000 4000 Feet Dala Disclaimer The Town of Marana provides this map information "As Is" at the request of the user with the understanding that It Is not guaranteed to be accurate, correct or complete and conclusions drawn from such information are the responsibility of the user. In no event shall The Town of Marana become liable to users of these data, or any other pa~y, for any loss or direct, indirect, special, incidental Or consequential damages, Including but not limited to time, money or goodwill, arising from the use or modification of the date. REQUEST Gladden Farms A request by Lodestar Engineering to rezone approximately 107 acres from "A" (Small Lot Zone) to "R-6" (Single Family Residential/6,000 Sq. Ft. ~--inimum lot size). The property is generally located at the southeast corner of Barnett Rd. and Sanders Rd. within Section 28, Township 11S, Range 11E TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 3.b TO: FROM: SUBJECT: MAYOR AND COUNCIL Frank Cassidy, Town Attorney Resolution No. 2004-168: Relating to development; approving and authorizing the execution of a development agreement with Tri Marana Development Management and Consulting LLC, regard- ing the Payson Farms development project. DISCUSSION This is a companion action to tonight's consideration of the Payson Farms rezoning. This pro- posed development agreement will carry out some of the terms of the rezoning and will establish the various payment terms for park and school facility in-lieu payments. Among other things, if this development agreement is approved, it will impose the following requirements: · Payment of $1,200 per residential unit as a school fee in-lieu of dedicating property for school facilities. · A $1,000 per residential unit regional park/trail system payment, in addition to the devel- oper's obligation to construct that portion of the Barnett Linear Park located adjacent to the Payson Farms property (together, these financial obligations are calculated to be the same as the Town's currently proposed regional park development impact fee). · Construction of the full three-lane cross-section with multi-use lanes of Clark Farms Road through the Payson Farms property and local or safety improvements to Sanders Road and Moore Road (which together calculate out at the approximate amount per resi- dential unit of the Town's currently proposed transportation development impact fee). · Payment of $500 per acre for the bank protection obligation imposed by Marana Ordi- nance No. 99.02. · Vesting of the developer's zoning entitlements for a period of seven years, except that Payson Farms will be required to comply with any newly-adopted residential design guidelines. This proposed development agreement is consistent with the Town's standard development agreement boilerplate as it has evolved over the years. RECOMMENDATION Staff recommends adoption of Resolution No. 2004-168, approving and authorizing the execu- tion of the Payson Farms development agreement. SUGGESTED MOTION I move to adopt Resolution No. 2004-168. {00000384. DOC/} FJC/cds 12/27/04 MARANA RESOLUTION NO. 2004-168 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF A DEVELOPMENT AGREEMENT WITH TRI MARANA DEVELOPMENT MANAGEMENT AND CONSULTING LLC, REGARDING THE PAYSON FARMS DEVELOPMENT PROJECT. WHEREAS, the Town of Marana and the developer of the Payson Farms development project have negotiated a development agreement to facilitate the development of the Payson Farms project; and WHEREAS, this development agreement will carry out some of the terms of the rezoning and will establish the various payment terms for park and school facility in-lieu payments; and WHEREAS, the Mayor and Council find that the terms and conditions of the Payson Farms Development Agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Mayor and Council of the Town of Marana hereby approve and authorize the execution of the Payson Farms Development Agreement with Tri Marana Development Management And Consulting LLC, relating to the Payson Farms development project. SECTION 2. The Mayor is hereby authorized and directed to execute, and the Town Clerk is hereby authorized and directed to attest to, the Payson Farms Development Agreement attached hereto as Exhibit A and incorporated herein by this reference, 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 AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of January, 2005. [00000386.DOC/] FJC/cds 12/1/04 ATTEST: Mayor Bobby Sutton, Jr. Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00000386.DOC/} 2 FdC/cds 12/27/04 PAYSON FARMS DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA THIS DEVELOPMENT AGREEMENT ("this Agreement") is made by and between the TOWN OF MANNA, an Arizona municipal corporation (the "Town"), MAP, ANA DEVELOPMENT CO~,PO~,ATION, an Arizona corporation formerly called PAYSON FAP, MS, INC. (the "Owner") and TPd MALa, NA DEVELOPMENT MANAGEMENT AND CONSULTING LLC, an Arizona limited liability company ("Tri Marana"). The Owner and Tri Marana are collectively referred to as the "Developer". The Town, the Owner and Tri Marana are sometimes collectively referred to in this Agreement as the "Parties," and are sometimes individually referred to as the "Party." RECITALS A. The Owner owns approximately 107 acres land located in the Town limits, as depicted on the map attached as Exhibit "A" and legally described on Exhibit "B" (the "Property"). B. The following are among the development regulations that now apply to the Property: i) The Northwest Marana Area Plan ("NMAP') ii) The conditions of Town rezoning case number PCZ-04-034 (the "Rezoning"), approved concurrently with the January 4, 2005 approval of this Agreement. iii) The Marana Development Code (including the written rules, regulations, procedures, and other policies relating to development of land, whether adopted by the Mayor and Council or by Town Staff) (collectively the "Marana Development Code"), establishing, among other things, the type of land uses, location, density and intensity of such land uses, and community character of the Property, and providing for, among other things, the development of a variety of housing and recreation/open space opportunities. C. The Owner and Tri Marana are proposing to develop the Property, and for that purpose have presented the Rezoning and this Agreement to the Town for its consideration. D. The Developer and the Town desire that the Property be developed in a manner consistent with the development regulations that now apply to the Property, as amplified and supplemented by this Agreement. E. The Town and the Developer acknowledge that the development of the Property pursuant to this Agreement will result in planning and economic benefits to the Town and its residents. F. The Developer has made and by this Agreement will continue to make a substantial commitment of resources for public and private improvements on the Property. G. The Parties understand and acknowledge that this Agreement is a "Development Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. § 9-500.05. H. This Agreement is consistent with the portions of the Town's General Plan applicable to the Property. {00000406.DOC / 2}/6} PAYSON FARMS DEVELOPMENT AGREEMENT -1- 12/28/2004 10:43 AM AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Agreement, the Parties hereby agree as follows: Article 1. Development Plans. 1.1. Development Review. The Property shall be developed in a manner consistent with the development regulations that now apply to the Property and this Agreement, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for the Property. Upon the Developer's compliance with the applicable development review and approval procedures and substantive requirements of the development regulations that now apply to the Property, the Town agrees to issue such permits or approvals for the Property as may be requested by the Developer. 1.2. Zoning and Plat Conditions. The Developer agrees to fulfill all conditions outlined in the development regulations that now apply to the Property. 1.3. Avigation Easement and Noise Attenuation. Developer shall record an avigation easement and shall provide noise attenuation sufficient to reduce the sound of overhead aircraft to not more than a noise level reduction to be incorporated in the design and construction in order to achieve a maximum interior noise level of forty-five decibels. 1.4. Determination of No Hazard to Air Navigation. All of the Property is located within 20,000 feet (3.8 miles) of Marana Northwest Regional Airport. Before any construction or alteration of greater height on the Property than an imaginary surface extending outward and upward at a 100 to 1 slope for a horizontal distance of 20,000 feet from the nearest point of the nearest runway of the Airport, an FAA-7460 form shall be submitted to the Federal Aviation Administration and the construction or alteration shall receive a "Determination of No Hazard to Air Navigation" from the Federal Aviation Administration. 1.5. Archaeological/Historic Resources. Development of the Property shall meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code related to Archeological and Historic Resources. 1.6. Site Built Construction and Building Permits. All construction on any portion of the Property, whether sold in bulk or individually, whether subdivided or not, shall be site built and shall require building permits. 1.7. Compliance with Residential Design Guidelines. All residential construction on any portion of the Property shall be constructed in accordance with the then current residential design guidelines as adopted by the Town of Marana, and any construction for which building permits have not yet been applied for as of the effective date of the residential design guidelines shall comply with those residential design guidelines. Article 2. On-Site Infrastructure and Project Impact Obligations. 2.1. Roadway Improvements: Developer shall construct in accordance with plans approved by the Town and shall dedicate to the Town: 2.1.1. The full three-lane cross-section (with multi-use lanes) of Clark Farms Road through the Property; and 2.1.2. Local or safety improvements to Sanders Road and Moore Road that the Town reasonably determines are necessary to serve the Property. {00000406.DOC / 2}/6} PAYSON FARMS DEVELOPMENT AGREEMENT -2- 12/28/2004 10:43 AM 2.2. Water Utilities. Prior to the approval of the Final Plat for the Property, the Developer shall enter into a Water Service Agreement with the Town of Marana Water Utility for potable and non-potable systems which sets forth the various agreements of the Parties relating to, among other things, the interconnection and main extension from the existing water system, and the development, construction, dedication, ownership, and design of the water system, including necessary storage and well(s) necessary to serve the Property. The Town will act on the Water Service Agreement within a reasonable time. 2.2.1. Transfer of Grandfathered Water Rights. The Developer shall transfer to the Town, as prescribed by the Arizona Department of Water Resources, the Irrigation Grandfathered Rights (IGR) water rights on lands deeded to the Town pursuant to the Certificate of Grandfathered Water Rights. On lands not deeded to the Town, extinguishment credits will be transferred to the Town on appropriate Department of Water Resource form. In exchange, the Town shall provide designation of assured water supply and water service to the Property. 2.3. Wastewater. The Developer shall construct the necessary sewer system to serve the Property. The sewer system shall be in conformance with, and subject to, the requirements of Pima County Wastewater Management and the Town, and shall be designed and constructed at sole cost of the Developer. 2.4. Onsite Private Recreational Facilities. Within each platted block or parcel, private recreational facilities shall be constructed on a site of not less than 185 square feet per residential unit. Site and facility design shall be approved by the Town Parks & Recreation Director and Development Services Director. 2.5. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the Property, the Developer shall have completed or shall provide evidence to the Town's satisfaction that Developer has made a diligent effort to complete the process of having the Property annexed into a fire district. 2.6. School Facility Contribution. The Owner or its assignee shall contribute $1,200 per residential unit ("School Fee") due and payable to the Marana Unified School District upon the issuance of the residential building permit. In the event that the Town or the Marana Unified School District adopts an impact fee for schools in the future, the School Fee shall be credited to such future fees. 2.7. Regional Public Park/Trail System. The Developer shall construct in accordance with plans approved by the Town and shall dedicate to the Town that portion of Barnett Linear Park located on the Property as part of the Town's public park facilities and trail system. These Barnett Linear Park lands and improvements shall be deeded to the Town after construction and acceptance by the Marana Park and Recreation Director and Development Services Director. In addition, the Developer shall contribute $1,000.00 per residential unit to be used by the Town for regional park purposes. 2.8. Bank Protection. In compliance with the Rezoning and Town Ordinance No. 99.02, Developer shall pay $500.00 per acre of affected Property for bank protection. The total obligation of Developer for the project is $53,500.00 ($500 times 107 affected acres). Payment shall be made prior to the release of subdivision assurances for any portion of the Property. 2.9. Irrigation System. In compliance with the Northwest Marana Area Plan and the rules and bylaws governing the Cortaro-Marana Irrigation District (CMID) and the Cortaro Water {00000406.DOC / 2}/6} PAYSON FARMS DEVELOPMENT AGREEMENT -3- 12/28/2004 1 O: 43 AM Users' Association, the Developer shall construct and dedicate to the Town a secondary or non- potable irrigation system to distribute irrigation water to the high point of each quarter section of land and to each individual residential and commercial lot or parcel created on the Property. 2.10. Cortaro-Marana Irrigation District (CMID). The Developer shall use its best efforts to enter into a formal agreement with CMID concerning the construction and maintenance of necessary irrigation systems and well sites to perpetuate CMID's ability to serve irrigation water to CMID's users and to underground at the Developer's cost all CMID canals affected by the development of the Property. 2.11. Compliance with State and Federal Laws and Regulations. No approval, permit or authorization of the Town authorizes the Developer to violate any applicable federal or state laws or regulations, or relieves the Developer from the responsibility to ensure compliance with all applicable federal and state laws and regulations, including but not limited to the Endangered Species Act and Clean Water Act. Article 3. Infrastructure Financing 3.1. Responsibility for Financing Infrastructure Improvements. Upon request of the Developer, the Town staff shall process any request for a community facilities district ("CFD") pursuant to A.R.S. § 48-701 et seq. and the Town's guidelines for establishment of community facilities districts. Article 4. Cooperation and Alternative Dispute Resolution. 4.1. Appointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the Development, the Town and the Developer each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Developer. The initial representative for the Town (the "Town Representative") shall be the Development Services Administrator, and the initial representative for the Developer shall be Jon Post or a replacement to be selected by the Developer. The representatives shall be available at all reasonable times to discuss and review the performance of the Parties to this Agreement and the development of the Property. 4.2. Timing. The Town acknowledges the necessity for prompt review by the Town of all plans and other materials (the "Submitted Materials") submitted by the Developer to the Town hereunder or pursuant to any zoning procedure, permit procedure, or other governmental procedure pertaining to the development of the Property and agrees to use its best efforts to accomplish such prompt review of the Submitted Materials whenever possible. 4.3. Default; Remedies. If either Party defaults (the "Defaulting Party") with respect to any of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party") shall be entitled to give written notice in the manner prescribed in paragraph 7.1 to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected. The Defaulting Party shall then have (i) twenty days from the date of the notice within which to correct the default if it can reasonably be corrected by the payment of money, or (ii) thirty days from the date of the notice to cure the default if action other than the payment of money is reasonably required, or if the non-monetary default cannot reasonably be cured within sixty days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration {00000406.DOC / 2}/6} PA YSON FARMS DEVELOPMENT A GREEMENT -4- 12/28/2004 10:43 AM proceedings set forth in paragraphs 4.4 and 4.5 below. The Parties agree that due to the size, nature and scope of the Development, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to Developer's development and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific performance will likely be appropriate for the enforcement of this Agreement. This paragraph shall not limit any other rights, remedies, or causes of action that either party may have at law or in equity. 4.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a forty-five day moratorium on arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by Developer and the Town. If the Parties cannot agree upon the selection of a mediator within seven days, then within three days thereafter the Town and the Developer shall request the presiding judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at least five years' experience in mediating or arbitrating disputes relating to real estate development. The cost of any such mediation shall be divided equally between the Town and the Developer. The results of the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 4.5. Arbitration. After mediation (paragraph 4.4) any dispute, controversy, claim or cause of action arising out of or relating to this Agreement shall be settled by submission of the matter by both Parties to binding arbitration in accordance with the rules of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. § 12-501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. Article 5. Protected Development Rights To ensure reasonable certainty, stability and fairness to the Developer and the Town for a reasonable period of time, the Developer and the Town agree that the zoning designations, uses, and densities that now apply to the Property, as amended by this Agreement, shall remain in effect and shall not be changed for a period of seven years after the execution of this Agreement without the agreement of the Developer. Nothing in this paragraph shall in any way restrict the Town from adopting and applying to the Property the residential design guidelines as provided in paragraph 1.7 above. Article 6. Future Impact Fees If the Town adopts an impact fee for the same infrastructure for which Developer has contributed land or made improvements pursuant to this Agreement, Developer shall be entitled to a credit for such contributions as set forth in A.R.S. § 9-463.05. Article 7. Notices and Filings. 7.1. Manner of Serving. All notices, filings, consents, approvals and other communications provided for in or given in connection with this Agreement shall be validly given, filed, made, transmitted or served if in writing and delivered personally or sent by registered or certified United States mail, postage prepaid, if to (or to such other addresses as any Party may from time to time designate in writing and deliver in a like manner): {00000406.DOC / 2}/6} PA YSON FARMS DEVELOPMENT AGREEMENT -5- 12/28/2004 1 O: 43 AM To the Town: Town of Marana Town Manager 13251 N. Lon Adams Road Marana, Arizona 85653 To the Developer: David Hum, President MARANA DEVELOPMENT CORPORATION 13801 W. Kirby Hughes Road Marana, Arizona 85653 Article 8. General Terms and Conditions. 8.1. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. The Developer shall be entitled to terminate this Agreement if the Town materially impairs the development entitlements on the Property granted by this Agreement. 8.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right or remedy, and no waiver by the Town or the Developer of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 8.3. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any breach or default of this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys' fees by the other Party, in an amount determined by the court and not by the jury. 8.4. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 8.5. Headings and Recitals. The descriptive headings of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. The Recitals set forth at the beginning of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here. 8.6. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. 8.7. Further Acts. Each of the Parties shall execute and deliver all documents and perform all acts as reasonably necessary, from time to time, to carry out the matter contemplated by this {00000406.DOC / 2}/6} P,4 YSON F,4RMS DEVELOPMENT A GREEMENT -6- 12/28/2004 1 O: 43 AM Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by the Developer and its successors. 8.8. Future Effect. 8.8.1. Time Essence and Successors. Time is of the essence of this Agreement. All of the provisions of this Agreement shall inure to the benefit of and be binding upon the successors, assigns and legal representative of the Parties, except as provided in paragraph 8.8.2 below. Notwithstanding the foregoing, to the extent permitted by law, the Developer's rights under this Agreement may only be assigned by a written instrument, agreed to by all of the Parties and recorded in the Official Records of Pima County, Arizona, expressly assigning such rights, and no obligation of the Developer under this Agreement shall be binding upon anyone owning any right, title or interest in the Property unless such obligation has been specifically assumed in writing or unless otherwise required by law. The Town understands that the Developer may create one or more entities or subsidiaries wholly owned or controlled by the Developer for purposes of carrying out the development of the Property as contemplated in this Agreement, and the Town's consent to the Developer's assignment of its rights under this Agreement to such entities or subsidiaries shall not be withheld. In the event of a complete assignment by Developer of all rights and obligations of Developer under this Agreement, Developer's liability under this Agreement shall terminate effective upon the assumption of those liabilities by Developer's assignee, provided that the Town has approved the assignment to such assignee, which approval shall not unreasonably be withheld. 8.8.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate without the execution or recordation of any further document or instrument as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the end purchaser or user and thereupon such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement. 8.9. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any parmership, joint venture or other arrangement between the Developer and the Town. No term or provision of this Agreement is intended to, or shall be for the benefit of any person, firm, organization or corporation not a party to this Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement. 8.10. Other Instruments. Each Party shall, promptly upon the request of the other, have acknowledged and delivered to the other any and all further instruments and assurances reasonably request or appropriate to evidence or give effect to the provisions of this Agreement. 8.11. Imposition of Duty by Law. This Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. 8.12. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in this Agreement. {00000406.DOC / 2}/6} PAYSON F,4RMS DEVELOPMENT AGREEMENT - 7- 12/28/2004 1 O: 43 AM 8.13. Amendments to Agreement. No change or addition shall be made to this Agreement except by a written amendment executed by the Parties. The Parties agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in the Final Plat and Specific Plan as amended by this Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense of the Party requesting the amendment. 8.14. Names and Plans. The Developer shall be the sole owner of all names, titles, plans, drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at any time developed, formulated or prepared by or at the instance of the Developer in connection with the Property or any plans; provided, however, that in connection with any conveyance of portions of the infrastructure as provided in this Agreement such rights pertaining to the portions of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to the appropriate governmental authority. 8.15. Good Standing; Authority. The Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of Arizona and is authorized to do business in the state of Arizona. The Town represents and warrants to the Developer that it is an Arizona municipal corporation with authority to enter into this Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 8.16. Severability. If any provision of this Agreement is declared void or unenforceable, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. If a law or court order prohibits or excuses the Town from undertaking any contractual commitment to perform any act under this Agreement, this Agreement shall remain in full force and effect, but the provision requiring the act shall be deemed to permit the Town to act at its discretion, and if the Town fails to act, the Developer shall be entitled to terminate this Agreement. 8.17. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 4.5, requiring disputes to be resolved by binding arbitration. 8.18. Interpretation. This Agreement has been negotiated by the Town and the Developer, and no party shall be deemed to have drafted this Agreement for purposes of construing any portion of this Agreement for or against any party. 8.19. Recordation. The Town shall record this Agreement in its entirety in the office of the Pima County Recorder no later than ten days after it has been executed by the Town and the Developer. 8.20. No Developer Representations. Except as specifically set forth in this Agreement, nothing contained in this Agreement shall be deemed to obligate the Town or the Developer to complete any part or all of the development of the Property. 8.21. Approval. If any Party is required pursuant to this Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. {00000406.DOC / 2}/6} PAYSON F,4RMS DEVELOPMENT AGREEMENT -8- 12/28/2004 1 O: 43 AM 8.22. Force Majeure. If any Party shall be unable to observe or perform any covenant or condition of this Agreement by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Agreement so long as such Party shall use its best effort to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition can be cured within a reasonable amount of time. "Force majeure," as used in this paragraph, means any condition or event not reasonably within the control of such party, including without limitation, "acts of God," strikes, lock-outs, or other disturbances of employer/employee relations; acts of public enemies; orders or restraints of any kind of government of the United States or any state thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of people; explosions; and partial or entire failure of utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing Party or Parties, in either case when such course is in the judgment of and unfavorable to a Party shall not constitute failure to use its best efforts to remedy such a condition. 8.23. Conflict of Interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: DEVELOPER: THE TOWN OF MARANA, an Arizona municipal corporation MARANA DEVELOPMENT CORPORATION, an Arizona corporation (the "Owner") By: By: Bobby Sutton, Jr., Mayor Date: Date: ATTEST: David Hum, President TRI MARANA DEVELOPMENT MANAGEMENT AND CONSULTING LLC, an Arizona limited liability company ("Tri Marana") Jocelyn C. Bronson, Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney By: Date: Jon Post, Managing Member {00000406.DOC / 2}/6} PA YSON FARMS DEVELOPMENT 21GREEMENT -9- 12/28/2004 1 O: 43 AM STATE OF ARIZONA ) SS County of Pima ) The foregoing instrument was acknowledged before me on ,2004 by David Hum, President of MARANA DEVELOPMENT CORPORATION, an Arizona corporation, on behalf of the corporation. My commission expires: Notary Public STATE OF ARIZONA ) SS County of Pima ) The foregoing instrument was acknowledged before me on ,2004 by Jon Post, Managing Member of TRI MARANA DEVELOPMENT MANAGEMENT AND CONSULTING LLC, an Arizona limited liability company, on behalf of the LLC. My commission expires: Notary Public {00000406.DOC / 2}/6} PA YSON FARMS DEVELOPMENT AGREEMENT -! O- 12/28/2004 1 O: 43 AM TOWN COUNCIL MEETING TOWN OF MARANA rAn^~ INFORMATION ~ MEETING DATE: January 4, 2005 AGENDA ITEM: IX B. 4. a TO: FROM: SUBJECT: MAYOR AND COUNCIL Barbara C. Berlin, Planning Director PUBLIC HEARING: Ordinance No. 2004.26: Relating to Development; repealing Ordinance No. 2004.18 and approving a request by Cottonwood Properties to rezone approximately 230 acres of land from R-144 (Single Family Residential, 144,000 square feet minimum lot area) to "F" (Tortolita Vistas Specific Plan). This item was continued from the December 21, 2004 meeting. DISCUSSION The Marana Planning Commission held a public hearing on the April, 2004 version of this Specific Plan at its regular meeting of May 26, 2004, and voted 5-1 (Vice-Chair Clanagan dissenting) recommending approval to the Mayor and Council. Council approved the rezoning by Ordinance 2004.18 on July 20, 2004. Subsequently, Citizens for Responsible Growth in Marana succeeded in obtaining enough signatures to a petition to submit the rezoning action to referendum. Cottonwood Properties' representatives have since met with the petition originators and were successful in reaching a compromise calling for land use density and intensity reduction, along with additional zoning conditions. Cottonwood Properties requests that the Mayor and Council repeal Ordinance 2004.18 and adopt the negotiated Tortolita Specific Plan, along with a revised Development Agreement. The revised plan, submitted by The Planning Center December 21 on behalf of Cottonwood Properties, seeks approval of a rezoning for a 230-acre site to develop a single-family residential subdivision on lots not smaller than 32,000 square feet and disturbing no more than 40% of the site. The subject site is generally located south of Moore Road, east of the Oldfather Road alignment and west of Thornydale Road in a portion of Section 31, Township 11 South, Range 13 East. Approval of this proposed rezoning would rezone the subject area to "F" Specific Plan. The purpose of "F" zoning is to provide functionality and creativity in site planning and design. Development of the proposed plan would offer custom dwellings on large, individually graded lots on private roads, disturbing not more than 40% of the site. The following table compares the plan adopted July 2004 with the proposed substitute plan. {00000445.DOC/} 1 FJC/cds 12/29/2004 2:00 PM Adopted Plan Proposed Plan Total acreage 231 231 Buildable area (40%)(unless 92 92 reduced by Fish&Wildlife) Maximum # lots allowable 400 155 Lot size 6,000 s.f. 32,000 s.f. Roads 17,947 1.f. 17,100 1.f. Roads (acres ~ 32' width) 13.18 12.56 Net acres available (rounded) 79 79 Net density 5.06 d.u./ac 1.96 d.u./ac Grading Mass Per site, w/remainder preserved Building envelope 40% of total Not specified, but not to exceed 40% maximum disturbance, inc. streets Setbacks 15' land rear 20' front; 40' adjacent to CA Conservation area 138.6 73.19 + remainder of lots outside bldg. envelope # 2-story houses Per code Prohibited on northeast lots; silent Elsewhere; 2rids story limited to 60% GENERAL PLAN The Town of Marana General Plan Update, ratified March 11, 2003, designates the subject area as Rural Density Residential (RDR). The RDR is intended to preserve environmentally sensitive lands and recommends a maximum density of one home per 2 acres. Per the adopted General Plan the proposed rezoning also requires a minor amendment to the General Plan. The minor amendment is incorporated into this process and would allow for the General Plan land use designation to be changed from Rural Density Residential to Master Planning Area. The proposed project meets the criteria for a minor amendment and therefore staff is including the review and recommendation for the minor amendment to the General Plan in conjunction with this application. LAND USE Two land use designations are proposed by the specific plan: Residential (RA) and Conservation Area (CA). The RA land use designation allows for site built dwellings, community recreation facilities, public trails, parking, utilities and emergency access drives. The RA land use area is limited to a maximum of 92 acres and is strategically placed to preserve the natural and environmental features of the site. The CA encompasses 73 acres of Natural Undisturbed Open Space plus the remaining private lot area outside building envelopes. The Land Use Plan (Exhibit III.E.1) better delineates the proposed developable areas within the Tortolita Vistas Specific Plan. TRAFFIC CIRCULATION The Tortolita Vistas Specific Plan proposes street access from one point on Thornydale Road and one from Moore Road. The internal circulation provides a loop system that internally connects {00000445.DOC/} 2 FdC/cds 12/29/2004 2:O0 PM Moore and Thomydale Roads. All private local streets will comply with the Town of Marana Local Street standards. ROAD IMPROVEMENTS A traffic impact analysis (TIA) was prepared by Mathieu Engineering Corporation for the plan approved in July. Per the revised Development Agreement the developer will construct a portion of Moore Road. The Town requires a new traffic impact analysis prior to any construction on the site. The developer will construct such roadway improvements as the Town reasonably determines necessary to access the property. The ultimate development under this proposal will also eliminate this portion of the Camino de Manana right of way across the rezoning site. CONSERVATION PLAN Most of the property in the immediate area is vacant or privately owned residential sites. The subject area is vacant. The topography of the Tortolita Vistas Specific Plan is characteristic of the Tortolita Foothills containing a variety of land forms. The subject area slopes from the northeast to the southwest. It contains an average cross slope of 5.91%. There are four identifiable drainage features that cross the site from the northeast to the southwest. The subject area contains significant natural resources with respect to topography, vegetation, and wildlife. To address the Town's concerns, the specific plan employs various methods to ensure that development procedures are appropriate for clustering the proposed development. The project has established a maximum gross site disturbance of 40 %. The Tortolita Vistas Specific Plan proposes a Conservation Plan (Section VII), which provides for the framework for minimizing the impacts on native plants, wildlife and other natural resources. Implementation will be through the platting process and subsequent grading of the project. The Conservation Plan includes sections addressing the Purpose and the Implementation in developing the site in compliance with the proposed specific plan. SEWER & WATER All lots will be served by extending the existing Pima County Wastewater Management sewer system. The existing 15" sewer line located at Camino de Oeste and Tangerine Road will need to be extended to serve the development. Pima County Wastewater Management has not committed to providing capacity to serve the area and state that the capacity commitment is accomplished in connection with an executed sewer service agreement at the time of preliminary plat. The ultimate provider of potable water has not been finalized, per the specific plan. The preferred option will have the potable water provided by Tucson Water, as there are already existing Tucson Water mains in the area. The City of Tucson Water Department has provided a letter indicating the area has an assured water supply. CULTURAL RESOURCES According to The Arizona State Museum (ASM) archaeological records indicate that two archaeological sites were found in the specific plan area. A more recent survey prepared by PAST, a cultural resource firm, resulted in no findings of additional sites other than those recorded at ASM. PAST also made a recommendation that one of the sites, site AA; 12:271 will require further testing. The testing of this site shall be done in conjunction with the preliminary plat submittal. {00000445.DOC/} 3 FdC/cds 12/29/2004 2:00 PM SCHOOL DISTRICT The proposed number of residential units could generate as many as 154 additional students for the Marana School District. Given the approved development in the area and the current capacities of existing schools in the district, there would be a need for additional schools. There are plans for one elementary school and one middle school, within the Dove Mountain Specific Plan area. Per the Development Agreement the developer has agreed to contribute a fee of $1,200.00 per residential unit to mitigate the effects of the proposed development on the Marana Unified School District. FIRE PROTECTION Per the Development Agreement prior to a certificate of occupancy being issued for any dwelling unit, the owner shall have completed or shall provide evidence to the Town's satisfaction that a diligent effort to complete the process of having the property annexed into a fire district or otherwise provide for fire protection service. RECREATION AND OPEN SPACE The plan proposes access to two public trails, the Thornydale Trail on Thomydale Road, and the Ironwood Trail that crosses the southeast comer of the site and links with Camino Del None south of the site. The plan also proposes an internal trail network. In addition, per the Development Agreement the developer shall contribute an in-lieu fee of $1,400.00 per residential unit for development of off-site regional public park and/or trail system.. DESIGN STANDARDS The project shall be limited to no more than 155 lots with minimum lot size of 32,000 square feet. The maximum building height shall be 30 feet with allowances for two story homes. The floor area of the second story of any two story dwelling shall be no greater than 60% of the enclosed floor and garage area of the first floor. Two story dwellings are prohibited in areas in proximity to existing development as identified on Exhibit III.E. Land Use Plan. The limitation on second story floor area and restricted location constitute revisions to the adopted plan. The adopted plan also limited the number of two story homes to a maximum of 50% of thc project site; given the new plan calls for custom homes on large lots, staff no longer recommends this restriction. The plan also provides restrictions so that no two consecutive homes will have the same elevation or color scheme. All building plans and elevations shall be approved by the Master Developer and the Town of Marana. RECOMMENDATION: Staff recommends approval of Ordinance No. 2004.26 approving a Minor Amendment to the General Plan and approval of the Tortolita Vistas Specific Plan, subject to the following conditions: RECOMMENDED CONDITIONS OF APPROVAL Compliance with all applicable provisions of the Town's Codes and Ordinances current at the time of any subsequent development including, but not limited to, requirements for public improvements. {00000445.DOC/} 4 FJC/cds 12/29/2004 2:00 PM o o o o ° 10. 11. 12. This rezoning is valid for two years from the date of Town Council approval. If the Developer fails to have an effective Development Agreement in place and a final subdivision plat recorded within such two-year time period the Town may initiate the necessary action to revert the property to the previous zoning (R-144), upon action by the Town Council. The ultimate development proposed by this rezoning shall be consistent with the adopted Development Agreement. The Developer shall submit a new transportation impact analysis (TIA) that shall be acceptable to the Town Transportation Engineer. The TIA must be approved prior to the approval of the preliminary plat. At the time that the local roads and/or disturbed areas are staked, a biologist will be onsite to protect valuable habitat and specimen trees where possible and determine the primary do not disturb areas based on vegetation coverage and habitat. No approval, permit or authorization of the Town of Marana authorizes the applicant and/or the landowner to violate any applicable federal or state laws or regulations, or relieves the applicant and/or the landowner from responsibility to ensure compliance with all applicable federal and state laws and regulations, including the Endangered Species Act and the Clean Water Act. The Developer is advised to retain appropriate expert and/or consult with the appropriate federal and state agencies to determine any action necessary to assure compliance with applicable laws and regulations The Developer shall dedicate, or cause to have dedicated, the half right-of-way of 75-feet that is adjacent to the property for Thornydale and Moore Roads, per the Town of Marana adopted major routes plan. A water service agreement and a master water plan must be submitted, by the Developer, and accepted by the Town of Marana Utilities Director and/or Tucson Water prior to the approval of the first plat by the Town Council. A sewer service agreement and master sewer plan must be submitted, by the Developer, and accepted by Pima County Wastewater Management and the Town Engineer prior to the approval of the first plat by the Town Council. The design of all streets and circulation related facilities shall be accepted by the Northwest Fire District prior to the Planning Commission's consideration of the preliminary plat. An annual report shall be submitted within 30 days of the anniversary of the Town Council's approval of the Specific Plan. In addition to those requirements listed in the Land Development Code and Specific Plan, the report shall provide an update to the current amount of site disturbance. A homeowners association (HOA) shall be established, acceptable to the Town of Marana, to control, maintain, and manage the residential areas and open space. {00000445.DOC/} 5 FJC/cds 12/29/2004 2:00 PM 13. The Town, or an agreeable third party, shall reserve the right for future site inspection for the purposes of habitat monitoring and management. 14. The Town shall reserve the right to monitor and enforce the habitat management responsibilities of the HOA. 15. The preliminary plat shall show water service responsibility and further state that said provider has received an Arizona Department of Water Resources 100-year water supply designation. 16. The preliminary plat shall be in general conformance with the Land Use Concept of the Specific Plan. 17. Upon adoption of the ordinance by the Mayor and Council approving the Tortolita Vistas Specific Plan, the applicant shall provide the Planning Department with the following final Tortolita Vistas Specific Plan: one non-bound original; forty bound copies; and, one digital copy in Microsoft Word or other acceptable format within sixty days of the adoption. SUGGESTED MOTION I move to approve Ordinance No. 2004.26 with the above conditions. {00000445.DOC/} 6 FJC/cds 12/29/2004 2:00 PM MARANA ORDINANCE NO. 2004.26 RELATING TO DEVELOPMENT; REPEALING ORDINANCE NO. 2004.18 AND APPROVING A REQUEST BY COTTONWOOD PROPERTIES TO REZONE APPROXIMATELY 230 ACRES OF LAND FROM R-144 (SINGLE FAMILY RESIDENTIAL, 144,000 SQUARE FEET MINIMUM LOT AREA) TO "F" (TORTOLITA VISTAS SPECIFIC PLAN). WHEREAS, the property owner for land within the Tortolita Specific Plan ("Property Owner" or "Developer") filed a proper request to modify the zoning of the property to Zone F, Specific Plan in accordance with the Marana Land Development Code; and WHEREAS, the Tortolita Vistas Specific Plan was reviewed by the Town's Planning Commission on May 16, 2004, and forwarded to Mayor and Council in accordance with the Land Development Code; and WHEREAS, the Mayor and Council considered the recommendations and adopted Ordi- nance No. 2004.18; and WHEREAS, the Ordinance did not become effective for 30-days after adoption pursuant to the Marana Land Development Code; and WHEREAS, referendum petitions were filed by Citizens for Responsible Growth in Ma- rana to refer approval of the Ordinance to the voters before it became operative, and as a result the Ordinance has not yet become operative; and WHEREAS, the Citizens for Responsible Growth in Marana have met with the Property Owner and identified additional land use restrictions that would further the purpose of the refer- endum; and WHEREAS, the Property Owner has prepared a Revised Tortolita Vistas Specific Plan and has requested Mayor and Council approve the Revised Tortolita Vistas Development Agreement; and WHEREAS, the Mayor and Council have provided notice to affected Property Owner in accordance with the Marana Land Development Code and held a hearing on the approval of the Specific Plan with the additional land use restrictions and received comments from interested persons; and WHEREAS, on the basis of the public hearing, and input from the Citizens for Respon- sible Growth in Marana, Town staff and the Property Owner, Mayor and Council have now de- termined that adoption of the Specific Plan with the additional land use restrictions will further the purposes of the referendum and meet the objectives of the Town and are in the public inter- est; {00000444.DOC/} 1 FJC/cds 12/29/2004 1:35 PM NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, as follows: Section 1. Marana Ordinance No. 2004-18 is repealed. Section 2. A minor amendment to the General Plan of approximately 230 acres of land located within a portion of Section 31, Township 11 South, Range 13 East, on the south side of Moore Road, east of the Oldfather road alignment and west of Thornydale (the "Rezoning Area"), changing the land use designation from Rural Density Residential to Master Planning Area. Section 3. The zoning of approximately 230 acres of land located within a portion of Section 31, Township 11 South, Range 13 East, on the south side of Moore Road, east of the Oldfather road alignment and west of Thornydale (the "Rezoning Area"), is hereby changed from Zone "R-144" (Single Family Residential, 144,000 sq. ft. minimum lot size) to "F" (Specific Plan) creating the Tortolita Vistas Specific Plan. Section 4. The purpose of this rezoning is to allow the use of the Rezoning Area for sin- gle family detached dwellings on individually graded lots and undisturbed open space, subject to the following conditions, the violation of which shall be treated in the same manner as a viola- tion of the Town of Marana Land Development Code (but which shall not cause a reversion of this rezoning ordinance): Compliance with all applicable provisions of the Town's Codes and Ordinances current at the time of any subsequent development including, but not limited to, requirements for public improvements. o This rezoning is valid for two years from the date of Town Council approval. If the De- veloper fails to have an effective Development Agreement in place and a final subdivi- sion plat recorded within such two-year time period, the Town may initiate the necessary action to revert the property to the previous zoning (R-144) upon action by the Town Council. o The ultimate development proposed by this rezoning shall be consistent with the adopted Development Agreement. o The Developer shall submit a new transportation impact analysis (TIA) that shall be ac- ceptable to the Town Transportation Engineer. The TIA must be approved prior to the approval of the preliminary plat. o At the time that the local roads and/or disturbed areas are staked, a biologist will be on- site to protect valuable habitat and specimen trees where possible and determine the pri- mary do not disturb areas based on vegetation coverage and habitat. o No approval, permit or authorization of the Town of Marana authorizes the applicant and/or the landowner to violate any applicable federal or state laws or regulations, or re- lieves the applicant and/or the landowner from responsibility to ensure compliance with all applicable federal and state laws and regulations, including the Endangered Species Act and the Clean Water Act. The Developer is advised to retain appropriate expert {00000444.DOC/} 2 o o 10. 11. 12. 13. 14. 15. 16. 17. and/or consult with the appropriate federal and state agencies to determine any action necessary to assure compliance with applicable laws and regulations The Developer shall dedicate, or cause to have dedicated, the half right-of-way of 75-feet that is adjacent to the property for Thornydale and Moore Roads, per the Town of Ma- rana adopted major routes plan. A water service agreement and a master water plan must be submitted by the Developer, and accepted by the Town of Marana Utilities Director and/or Tucson Water prior to the approval of the first plat by the Town Council. A sewer service agreement and master sewer plan must be submitted by the Developer and accepted by Pima County Wastewater Management and the Town Engineer prior to the approval of the first plat by the Town Council. The design of all streets and circulation-related facilities shall be accepted by the North- west Fire District prior to the Planning Commission's consideration of the preliminary plat. An annual report shall be submitted within 30 days of the anniversary of the Town Coun- cil's approval of the Specific Plan. In addition to those requirements listed in the Land Development Code and Specific Plan, the report shall provide an update to the current amount of site disturbance. A homeowners association (HOA) shall be established, acceptable to the Town of Ma- rana, to control, maintain, and manage the residential areas and open space. The Town, or an agreeable third party, shall reserve the right for future site inspection for the purposes of habitat monitoring and management. The Town shall reserve the right to monitor and enforce the habitat management respon- sibilities of the HOA. The preliminary plat shall show water service responsibility and further state that said provider has received an Arizona Department of Water Resources 100-year water supply designation. The preliminary plat shall be in general conformance with the Land Use Concept of the Specific Plan. Upon adoption of the ordinance by the Mayor and Council approving the Tortolita Vistas Specific Plan, the applicant shall provide the Planning Department with the following fi- nal Tortolita Vistas Specific Plan: one non-bound original corrected as per the Planning Director plus forty bound copies and one digital copy in Microsoft Word or other accept- able format within sixty days of the adoption. {00000444.1~oc/} - 3 - Section 5. All Ordinances, Resolutions and Motions, and parts of Ordinances, Resolu- tions, and Motions of the Marana Town Council in conflict with the provisions of this Ordinance are hereby repealed, effective as of the effective date of Ordinance No. 2004.18. Section 6. This ordinance shall be effective only if it is legally operative within 45 days after the date of its passage. Section 7. This ordinance is intended to be adopted as a whole and not as separate or severable parts. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of January, 2005. Mayor Bobby Sutton, Jr. ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attomey {00000444.DOC/} 4 TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 4. b TO: FROM: SUBJECT: MAYOR AND COUNCIL Frank Cassidy, Town Attorney Resolution No. 2004-174: Relating to Development; repealing Ma- rana Resolution No. 2004-100; approving and authorizing the exe- cution of a revised development agreement regarding the Tortolita Vistas development project. DISCUSSION This is a proposed development agreement for the Tortolita Vistas project, consisting of ap- proximately 230 acres north of Tangerine Road and west of and abutting Thornydale Road. This development agreement has been prepared in conjunction with the Mayor and Council's consid- eration of the Tortolita Vistas Specific Plan, which is also on tonight's agenda. The Tortolita Vistas development agreement will not go into effect unless and until the Specific Plan becomes effective. The proposed Tortolita Vistas development agreement contains the following key terms (among others): · Disturbance limited to forty percent of the site · Thirty-two thousand square foot minimum residential lots · Compliance with all requirements of the Endangered Species Act and other federal and state laws and regulations · Construction of Moore Road between Thornydale and Camino de Oeste to the full ultimate cross-section; provided that the developer then gets a credit against any transportation impact fees for a period of seven years · A park and trail system contribution of $1,400 per residential unit · A voluntary school contribution of $1,200 per residential lot in lieu of school land dedication · A seven-year period during which the Town may not amend the zoning requirements that apply to Tortolita Vistas without the landowner's approval {00000446. DOC/} 7/7/04 F.]C -1- RECOMMENDATION Staff recommends adoption of Resolution No. 2004-174, repealing Resolution No. 2004-100 and approving and authorizing the execution of the revised Tortolita Vistas development agreement. SUGGESTED MOTION I move to adopt Resolution No. 2004-174. [00000446.DOC/} 7/7/04 FJC -2- MARANA RESOLUTION NO. 2004-174 RELATING TO DEVELOPMENT; REPEALING MARANA RESOLUTION NO. 2004-100; APPROVING AND AUTHORIZING THE EXECUTION OF A REVISED DEVELOPMENT AGREEMENT REGARDING THE TORTOLITA VISTAS DEVELOPMENT PROJECT. WHEREAS, the Mayor and Council find that the terms and conditions of the Tortolita Vistas Development Agreement authorized by Marana Resolution No. 2004-100 should be repealed and replaced by the Revised Tortolita Vistas Development Agreement which is in the best interests of the Town; and WHEREAS, Marana Resolution 2004-100 was adopted by Mayor and Council on July 20, 2004, and approved the Tortolita Vistas Development Agreement; and WHEREAS, the property owner with whom the Town entered into the Tortolita Vistas Development Agreement requests that the Town withdraw from the Tortolita Vistas Development Agreement and adopt the Revised Tortolita Vistas Development Agreement; and WHEREAS, the Mayor and Council find that the terms and conditions of the Revised Tortolita Vistas Development 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, AS FOLLOWS: SECTION 1. Marana Resolution No. 2004-100 approving the Tortolita Vistas Development Agreement is hereby repealed. SECTION 2. The Revised Tortolita Vistas Development Agreement is hereby approved. SECTION 3. The Mayor is hereby authorized and directed to execute, and the Town Clerk is hereby authorized and directed to attest to, the Revised Tortolita Vistas Development Agreement attached to and incorporated by this reference in this Resolution as Exhibit A for and on behalf of the Town of Marana SECTION 4. The various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this Resolution. {00000447.DOG/} FJC/cds 12/29/2004 3:01 PM SECTION 5. This Resolution shall become effective only if it is operative within 45 days of the date of its passage. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of January, 2005. Mayor Bobby Sutton, Jr. ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney { 00000447.DO0/} - 2 - FJC/cds 12/29/2004 3:00 PM TORTOLITA VISTAS DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF M^~N^, an Arizona municipal corporation (the "Town") and the following entities: OVERLAND VISTOSO LIMITED PARTNERSHIP, LLP, an Arizona limited liability partnership, JONAH CARSON MEHL 2003 TRUST, WESLEY PAUL MEHL 2003 TRUST, NORTHWEST LLC, an Arizona limited liability company, and JANETTE BUTC~IER H^RmSON I~VOCABLE TRUST, (all of which entities are collectively referred to as the "Owner"). The Town and the Owner are collectively referred to in this Agreement as the "Parties", each of which is sometimes individually referred to as the "Party". RECITALS A. The Owner owns approximately 230 acres of real property, within the corporate limits of the Town, as depicted on the map attached as Exhibit "A" and legally described on Exhibit "B" (the "Property"). B. The Town desires to have an agreement that provides for preservation of a substantial portion of the Property as natural open space. C. The Town Council previously approved Ordinance 2004.18 to modify the zoning for the Property ("Prior Specific Plan") which was repealed by the Council before its effective date. D. The Town Council previously approved a development agreement for the Property under Resolution 2004-100 ("Prior Development Agreement"), and the term of the Prior Development Agreement was to commence upon the effective date of the Prior Specific Plan, and the repeal thereof terminates the Prior Development Agreement. E. The following are among the development regulations that now apply to the Property, which together with and supplemented by this Agreement, are referred to collectively as the "Applicable Town Regulations": i) The Tortolita Vistas Specific Plan (the "Specific Plan") adopted December 21, 2004. ii) The Marana Development Code (including the written rules, regulations, procedures, and other policies relating to development of land, whether adopted by the Mayor and Council or by Town Staff), establishing, among other things, the type of land uses, location, density and intensity of such land uses, and community character of the Property, and providing for, among other things, the development of a variety of housing, commercial and recreation/open space opportunities. F. Pursuant to Arizona Revised Statutes, Section (A.R.S. §) 9-500.05, as amended, the Town and the Owner enter into this Agreement in order to, among other things, (i) facilitate development of public improvements to and on the Property, and (ii) facilitate development of the Property by providing for and establishing the type of land uses, location, density and intensity of such land uses, and community character of the Property, and providing for, among other things, the development of housing and recreation/open space as described in the Specific Plan and incorporating the development regulations and procedures referred to in it. [00000408.DOC/2] TORTOLITA VISTAS DEVELOPMENTA GREEMENT - 1- 12/3 0/2 004 9:26 AMFJC G. The Town and the Owner desire to enter into this Agreement to implement the Specific Plan. H. The Town and the Owner understand, acknowledge and agree (i) that this Agreement is a "Development Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. § 9-500.05, as amended, and (ii) that the terms of this Agreement are binding upon the Town and the Owner and their successors and assigns and shall run with the Property. I. The Town finds that the development of the Property pursuant to the Applicable Town Regulations will result in significant planning and economic benefits to the Town and its residents by: (i) facilitating development of the Property consistent with the Town's General Plan; (ii) providing open space and recreation areas; (iii) increasing tax and other revenues to the Town based on the terms of this Agreement and generation of sales tax on improvements to be constructed on the Property and/or (iv) creating jobs through construction activity on the Property. J. The Town has conditionally approved abandonment of public right-of way within the Property known as Camino de Mafiana. K. Due to the proximity of existing infrastructure, the Town has authorized the City of Tucson ("City") to provide water service in portions of Marana adjacent to the Property. Pursuant to the Intergovernmental Agreement dated November 21, 2000, between the Town and the City ("Water IGA"), the Town must provide stored water credits and authorizes the City to provide water service within the Property. The Water IGA also provides for the Town's cost for Stored Water Credits (as defined in the Water IGA) to be reimbursed as part of the monthly service bill to the customer. AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Agreement, the Parties hereby agree as follows: Article 1. Minimum Residential Lot Size. No residential lot on the Property shall be less than thirty two thousand square feet in size. Article 2. Environmental Sensitivity and Site Disturbance 2.1. Site Disturbance Restriction. The Owner shall leave no less than sixty percent of the Property as natural undisturbed open space (NUOS). For purposes of this requirement, disturbed areas shall include all disturbance within the Property associated with emergency access, utilities, easements, onsite roadways, constructed drainageways, homesites, driveways landscaping, and other similar development activity. For purposes of this requirement, any portion of the existing Camino de Mafiana right of way that is abandoned and revegetated to standards reasonably acceptable to the Town and Unimproved Trails within NUOS shall be considered NUOS. Offsite improvements to Moore Road and Thornydale Roads and any water reservoir site within the Property that is conveyed to a public entity shall be excluded from the disturbed area and shall be excluded from both the numerator and the denominator for purposes of calculating both the disturbance area and the total area of the Property. For purposes of this paragraph the term "Unimproved Trails" means a trail that (i) is no wider than two feet when originally established and expands through usage and erosion to no more than four feet; (ii) is revegetated and reestablished with native vegetation and native dirt and rock to a width of two feet whenever it expands to four feet or more; (iii) has a surface consisting of native dirt and rock [00000408.DOC/2] TORTOLITA VISTAS DEVELOPMENT AGREEMENT -2- 12/30/2004 9:26 AM FJC (no decomposed granite or concrete); (iv) is not improved with lighting, garbage receptacles or benches; and (v) neither accommodates nor permits motorized vehicles of any kind. 2.2. Identification of Undisturbed Areas. Before the issuance of any grading permit or other approval that would otherwise allow the Owner to remove vegetation from the Property, the Owner shall identify the anticipated NUOS for the current phase of development on such maps or other documentation as are reasonably acceptable to the Town. NUOS within a residential lot ("Lot") shall be identified on a "Building Envelope Plan" that identifies the limits of disturbance for each Lot. As development and development approvals occur for the Property, the specific locations of NUOS, and the maps or other documentation associated with it, may be modified with the written reasonable consent of the Town Manager, provided that the Owner shall at all times remain in compliance with paragraph 2.1 above. The NUOS shall be identified, tracked and managed as follows: 2.2.1. Prior to or upon requesting a building permit for a Lot, the Lot owner shall submit to the Town a grading plan. The limits of disturbance on the grading plan shall be no greater than as shown on the Building Envelope Plan. 2.2.2. Any expansion or modifications of structures on a Lot after the initial construction must comply with the Building Envelope Plan. 2.2.3. If for any reason the NUOS allocated to a Lot or parcel is reduced, the disturbed areas shall be restored prior to final inspection approval. The materials employed in the restoration shall be of the same vegetative size/volume and species as the original vegetation in the area of disturbance. Additionally, the owner of the violated area shall be responsible for providing additional NUOS within the Property or in a location acceptable to the Town. The amount of such additional NUOS shall be 100% of the excess disturbance and shall be reduced to 50% of the excess disturbance area upon compliance with the foregoing revegetation requirement. 2.2.4. The color of exterior paint on all residential structures shall be muted earth tones. Exterior paint colors for the main body wall color of a residence shall not exceed a 40% Light Reflectance Value (LRV) and colors for the trim (including, as applicable, window frames, doors, and accent color) shall not exceed a 50% LRV. 2.2.5. Walls enclosing the perimeter of a Lot are not permitted and patio walls shall only be constructed within the disturbed area as shown on the approved Building Envelope Plan. 2.2.6. All domestic animals shall at all times be kept within the enclosed area of the Lot or under strict control of the animal's owner. Pets outside enclosed areas shall be leashed. 2.2.7. Owner and its successors in interest shall allow access for purposes of monitoring or protecting the open space identified as Conservation Area under the Specific Plan. Such access shall be provided to a government agency or a nonprofit corporation established to monitor or maintain open space under a Habitat Conservation Plan approved by the US Fish and Wildlife Service. 2.2.8. The developer or builder of any portion of the Property shall install construction fencing to assure that all NUOS remain in their undisturbed natural state are protected during construction. Except as specifically modified by the terms of this Agreement, the Owner shall comply with all Town grading requirements. [00000408.DOC/2} TORTOLITA VISTAS DEVELOPMENT21GREEMENT -3- 12/30/2004 9:26 AM FJC 2.2.9. NUOS set aside as required by this Article shall be permanently maintained in their undisturbed natural state. 2.3. Ownership and Control of NUOS. Not later than when construction begins on the last substantial phase of the Property's development, the NUOS set aside within the Conservation Areas identified in the Specific Plan and maintained as required by this Article shall be placed in the permanent ownership and control of (i) one or more homeowners associations established by declarations of restrictive covenants recorded over all or part of the Property or (ii)at the Owner's discretion to a government or conservation entity the Town reasonably determines is willing and able to permanently maintain the NUOS as required by this Article. The balance of the NUOS shall be within residential lots and the homeowners association shall regulate such NUOS in compliance with this Agreement. The homeowners association shall restrict development in accordance with the Building Envelope Plan, but may allow variations thereto provided the area of NUOS is not decreased on an overall basis. 2.4. Compliance with State and Federal Laws and Regulations. No approval, permit or authorization of the Town authorizes the Owner to violate any applicable federal or state laws or regulations, or relieves the Owner from the responsibility to ensure compliance with all applicable federal and state laws and regulations, including, but not limited to the Endangered Species Act and Clean Water Act. Article 3. Development Plans and Subdivision Plats. 3.1. Development/Plat Review. The Property shall be developed in a manner consistent with the Applicable Town Regulations, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for the Property. Upon the Owner's compliance with the applicable development review and approval procedures and substantive requirements of the Applicable Town Regulations, the Town agrees to issue such permits or approvals for the Property as may be requested by the Owner. 3.2. Archaeological/Historic Resources. Development of the Property shall meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code related to Archeological and Historic Resources. 3.3. Site Built Construction and Building Permits. All construction on any portion of the Property, whether sold in bulk or individually, whether subdivided or not, shall be site built and shall require building permits. Article 4. On-Site Infrastructure. 4.1. Moore Road Improvements: Attached as Exhibit C is a roadway cross-section for improvements desired by the Town for Moore Road between Thornydale and Camino de Oeste ("Moore Road Improvements"). Prior to the release of assurances for the Property, the Owner shall construct the Moore Road Improvements. The Owner shall solicit at least three itemized third party bids for construction of the Moore Road Improvements and the low bid together with third party costs for permitting, design and construction changes required by the Town shall be the Moore Road Cost. 4.2. Regional Roadway Contribution. Provided that the Owner complies with the requirements of paragraph 4.1 above, the Town shall not collect any transportation impact fees for development activities on the Property for a period of seven years after the effective date of this Agreement. After the seven year period, the Town may collect for development activities on the Property any transportation impact fees of general application adopted pursuant to A.R.S. {00000408.DOC/2} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -4- 12/30/2004 9:26 AM FJC § 9-463.05 for the region which includes the Property; provided, however, that as of the seventh anniversary of this Agreement the Owner shall be given a credit against future transportation impact fees to the extent the Moore Road Cost exceeds the sum of all of the following: 4.2.1. The product of the number of homes then on the Property multiplied by the then- adopted transportation impact fee, plus 4.2.2. The total then-adopted transportation impact fee that would be paid if all non- residential development (if any) located on the Property were required to pay the fee. 4.3. Other Road Improvements. In addition to the roadway improvements addressed elsewhere in this Agreement, the Owner shall construct such roadway improvements as the Town reasonably determines are necessary to access the Property from the adjoining public right of way, including any necessary acceleration, deceleration and turn lanes on Thornydale Road and Moore Road. 4.4. Water Service. The Town shall provide Stored Water Credits for the Property and otherwise facilitate obtaining water service from the City for the Property. 4.5. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit within a final plat for a portion of the Property, the Owner shall have completed or shall provide evidence to the Town's satisfaction that Owner has made a diligent effort to complete the process of having such portion of the Property annexed into a fire district or otherwise provide for fire protection service in a manner that is acceptable to the Town Representative. 4.6. School Facility Contribution. The Owner or its assignee shall contribute $1,200 per residential unit ("School Fee") due and payable to the Marana Unified School District upon the issuance of the residential building permit. In the event that the Town or the Marana Unified School District adopts an impact fee for schools in the future, the School Fee shall be credited to such future fees. 4.7. Regional Public Park/Trail System. The Owner or its assignee shall contribute $1,400 per residential unit ("Park Fee"), due and payable due and payable to the Town upon the issuance of the residential building permit. The Park Fee shall be utilized by the Town for public park and trail system facilities. Any third party costs for design and development of regional public park and trail facilities within the Property shall be credited towards the Park Fee and levy of the Park Fee shall commence after all such credits have been utilized. 4.8. Camino de Mafiana. Pursuant to A.R.S. § 28-7203, the Town has adopted a resolution to conditionally abandon the portion of Camino de Mafiana that runs through the Property.. The Town shall cooperate with the Owner to effectuate such abandonment. The Town has reserved a sewer and utility easement within the abandonment area sufficient to facilitate extension of utilities to the Property and shall maintain such reservation for the benefit of the Property. Article 5. Cooperation and Alternative Dispute Resolution. 5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the Development, the Town and the Owner each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Owner. The initial representative for the Town (the "Town Representative") shall be the Development Services Administrator, and the initial representative for the Owner shall be David Mehl or a replacement to be selected by the Owner. The representatives shall be available at all reasonable [00000408.DOC/2} TORTOLITA VISTAS DEVELOPMENT .4 GREEMENT -5- 12/30/2004 9:26 AM F. JC times to discuss and review the performance of the Parties to this Agreement and the development of the Property. 5.2. Timing. The Town acknowledges the necessity for prompt review by the Town of all plans and other materials (the "Submitted Materials") submitted by the Owner to the Town hereunder or pursuant to any zoning procedure, permit procedure, or other governmental procedure pertaining to the development of the Property and agrees to use its best efforts to accomplish such prompt review of the Submitted Materials whenever possible. 5.3. Default; Remedies. If either Party defaults (the "Defaulting Party") with respect to any of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party") shall be entitled to give written notice in the manner prescribed in paragraph Article 7 to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected. The Defaulting Party shall then have (i) twenty days from the date of the notice within which to correct the default if it can reasonably be corrected by the payment of money, or (ii) thirty days from the date of the notice to cure the default if action other than the payment of money is reasonably required, or if the non-monetary default cannot reasonably be cured within sixty days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration proceedings set forth in paragraphs 5.4 and 5.5 below. The Parties agree that due to the size, nature and scope of the Development, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to Owner's development and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific performance will likely be appropriate for the enforcement of this Agreement. This paragraph shall not limit any other rights, remedies, or causes of action that either party may have at law or in equity. 5.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a twenty one day moratorium on arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by Owner and the Town. If the Parties cannot agree upon the selection of a mediator within seven days, then within three days thereafter the Town and the Owner shall request the presiding judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at least five years' experience in mediating or arbitrating disputes relating to real estate development. The cost of any such mediation shall be divided equally between the Town and the Owner. The results of the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 5.5. Arbitration. After mediation (paragraph 5.4 above) any dispute, controversy, claim or cause of action arising out of or relating to this Agreement shall be settled by submission of the matter by both Parties to binding arbitration in accordance with the rules of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. § 12-501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. [00000408.DOC/2] TORTOLITA VISTAS DEVELOPMENT AGREEMENT -6- 12/30/2004 9:26 AM FJC Article 6. Protected Development Rights To establish legally protected rights for the development of the Property in a manner consistent with this Agreement and the development regulations that now apply to the Property and to ensure reasonable certainty, stability and fairness to the Owner and the Town over the term of this Agreement, the Owner and the Town agree that the development regulations that now apply to the Property, as amended by this Agreement, shall remain in effect and shall not be changed for a period of seven years after the execution of this Agreement without the agreement of the Owner. Article 7. General Terms and Conditions. 7.1. Manner of Serving. All notices, filings, consents, approvals and other communications provided for in or given in connection with this Agreement shall be validly given, filed, made, transmitted or served if in writing and delivered personally or sent by registered or certified United States mail, postage prepaid, if to (or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner): To the Town: Town of Marana Town Manager 13251 N. Lon Adams Road Marana, Arizona 85653 To the Owner: Overland Vistoso Limited Partnership 3567 E. Sunrise Drive Suite 219 Tucson, Arizona 85718 7.2. Term. This Agreement shall become effective upon the later of the following (the "Effective Date"): (i) execution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement; and (ii) the effective date of the Specific Plan. The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. 7.3. Prior Approvals. The intent of the Parties is to repeal the Prior Specific Plan and Prior Development Agreement and adopt the Specific Plan and this Agreement to further the purpose of a referendum filed for the Prior Specific Plan. Provided that the Specific Plan and this Agreement go into effect without a referendum filing or other legal challenge, the Parties affirm that the Prior Specific Plan and Prior Development Agreement are of no further force and effect. 7.4. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right or remedy, and no waiver by the Town or the Owner of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 7.5. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any breach or default of [00000408.DOC/2] TORTOL1TA VISTAS DEVELOPMENT.4 GREEMENT - 7- 12/30/2004 9:26 AM FJC this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys' fees by the other Party, in an amount determined by the court and not by the jury. 7.6. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 7.7. Headings and Recitals. The descriptive headings of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. The Recitals set forth at the beginning of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here. 7.8. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. 7.9. Further Acts. Each of the Parties shall execute and deliver all documents and perform all acts as reasonably necessary, from time to time, to carry out the matter contemplated by this Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by the Owner and its successors. 7.10. Future Effect. 7.10.1. Time Essence and Successors. Time is of the essence of this Agreement. All of the provisions of this Agreement shall inure to the benefit of and be binding upon the successors, assigns and legal representative of the Parties, except as provided in paragraph 7.10.2 below. Notwithstanding the foregoing, to the extent permitted by law, the Owner's rights under this Agreement may only be assigned by a written instrument, agreed to by all of the Parties and recorded in the Official Records of Pima County, Arizona, expressly assigning such rights, and no obligation of the Owner under this Agreement shall be binding upon anyone owning any right, title or interest in the Property unless such obligation has been specifically assumed in writing or unless otherwise required by law. The Town understands that the Owner may create one or more entities or subsidiaries wholly owned or controlled by the Owner for purposes of carrying out the development of the Property as contemplated in this Agreement, and the Town's consent to the Owner's assignment of its rights under this Agreement to such entities or subsidiaries shall not be withheld. In the event of a complete assignment by Owner of all rights and obligations of Owner under this Agreement, Owner's liability under this Agreement shall terminate effective upon the assumption of those liabilities by Owner's assignee, provided that the Town has approved the assignment to such assignee, which approval shall not unreasonably be withheld. 7.10.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate without the execution or recordation of any further document or instrument as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the end purchaser or user and thereupon such lot [00000408.DOC/2] TORTOLITA VISTAS DEVELOPMENT AGREEMENT -8- 12/30/2004 9:26 AM FJC shall be released from and no longer be subject to or burdened by the provisions of this Agreement. 7.11. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between the Owner and the Town. No term or provision of this Agreement is intended to, or shall be for the benefit of any person, firm, organization or corporation not a party to this Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement. 7.12. Other Instruments. Each Party shall, promptly upon the request of the other, have acknowledged and delivered to the other any and all further instruments and assurances reasonably request or appropriate to evidence or give effect to the provisions of this Agreement. 7.13. Imposition of Duty by Law. This Agreement does not relieve any party hereto of any obligation or responsibility imposed upon it by law. 7.14. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in this Agreement. 7.15. Amendments to Agreement. No change or addition shall be made to this Agreement except by a written amendment executed by the Parties. The Parties agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in the Final Plat and Specific Plan as amended by this Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense of the Party requesting the amendment. 7.16. Names and Plans. The Owner shall be the sole owner of all names, titles, plans, drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at any time developed, formulated or prepared by or at the instance of the Owner in connection with the Property or any plans; provided, however, that in connection with any conveyance of portions of the infrastructure as provided in this Agreement such rights pertaining to the portions of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to the appropriate governmental authority. 7.17. Good Standing; Authority. The Owner represents and warrants to the Town that it is duly formed and validly existing under the laws of Arizona and is authorized to do business in the state of Arizona. The Town represents and warrants to the Owner that it is an Arizona municipal corporation with authority to enter into this Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 7.18. Severability. If any provision of this Agreement is declared void or unenforceable, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. If a law or court order prohibits or excuses the Town from undertaking any contractual commitment to perform any act under this Agreement, this Agreement shall remain in full force and effect, but the provision requiring the act shall be deemed to permit the Town to act at its discretion, and if the Town fails to act, the Owner shall be entitled to terminate this Agreement. [00000408.DOC/2] TORTOLITA VISTAS DEVELOPMENT AGREEMENT -9- ] 2/30/2004 9:26 AM FJC 7.19. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 5.5, requiring disputes to be resolved by binding arbitration. 7.20. Interpretation. This Agreement has been negotiated by the Town and the Owner, and no party shall be deemed to have drafted this Agreement for purposes of construing any portion of this Agreement for or against any party. 7.21. Recordation. The Town shall record this Agreement in its entirety in the office of the Pima County Recorder no later than ten days after the Effective Date. 7.22. No Owner Representations. Except as specifically set forth in this Agreement, nothing contained in this Agreement shall be deemed to obligate the Town or the Owner to complete any part or all of the development of the Property. 7.23. Approval. If any Party is required pursuant to this Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. 7.24. Force Majeure. If any Party shall be unable to observe or perform any covenant or condition of this Agreement by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Agreement so long as such Party shall use its best effort to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition can be cured within a reasonable amount of time. "Force majeure," as used in this paragraph, means any condition or event not reasonably within the control of such party, including without limitation, "acts of God," strikes, lock-outs, or other disturbances of employer/employee relations; acts of public enemies; orders or restraints of any kind of government of the United States or any state thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of people; explosions; and partial or entire failure of utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing Party or Parties, in either case when such course is in the judgment of and unfavorable to a Party shall not constitute failure to use its best efforts to remedy such a condition. 7.25. Conflict of Interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. {00000408.DOC/2} TOR TOLITA VISTAS DEVELOPMENT A GREEMENT -1 O- 12/30/2004 9:26 AM FJC IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: OWNER: THE TOWN OF MARANA, an Arizona municipal corporation By: Bobby Sutton, Jr., Mayor OVERLAND VISTOSO LIMITED PARTNERSHIP, ELP, an Arizona limited liability partnership By: Ready Two Corporation, Its General Partner Date: Date: JONAH CARSON MEHL 2003 GST TRUST ATTEST: By: W. Stuart Dornette, Trustee by William Hallinan as his attorney in fact Jocelyn C. Bronson, Clerk Date: APPROVED AS TO FORM: WESLEY PAUL MEHL 2003 GST TRUST Frank Cassidy, Town Attorney By: W. Stuart Dornette, Trustee by William Hallinan as his attorney in fact Date: NORTHWEST LLC, an Arizona liability company, By: limited Jim Harrison, Authorized Signatory Date: JANETTE BUTCHER HARRISON REVOCABLE TRUST By: Jim Harrison, Trustee Date: {00000408.DOC/2} TOR TOLIT.4 VIST.4S DE VELOPMENT .4 GREEMENT - 11- 12/3 0/2 004 9: 2 6 AM FJC State of Arizona ) County of Pima ) ss The foregoing instrument was acknowledged before me on by Ready Two Corporation, as General Partner of OVERLAND VISTOSO LIMITED PARTNERSHIP, an Arizona limited liability parmership, on behalf of the partnership. My commission expires: Notary Public State of Arizona ] County of Pima } ss The foregoing instrument was acknowledged before me on by W. Stuart Domette, as Trustee of the JONAH CARSON MEHL 2003 GST TRUST by William Hallinan as his attorney in fact. My commission expires: Notary Public State of Arizona ] County of Pima } ss The foregoing instrument was acknowledged before me on by W. Stuart Dornette, as Trustee of the WESLEY PAUL MEHL 2003 GST TRUST by William Hallinan as his attorney in fact. My commission expires: Notary Public State of Arizona ~ County of Pima } ss The foregoing instrument was acknowledged before me on by Jim Harrison, Authorized Signatory of NORTHWEST, LLC, an Arizona limited liability company. My commission expires: Notary Public State of Arizona ] County of Pima i ss The foregoing instrument was acknowledged before me on Harrison, Trustee of the JANETTE BUTCHER HARRISON REVOCABLE TRUST. by Jim My commission expires: Notary Public {00000408. DOC / 2] TORTOLITA VISTAS DEVELOPMENT AGREEMENT -12- 12/30/2004 9:26 AM FJC Location and Vicinity Map AMiNO DEi NORTE The site is located in Township 11 South, Range 13 East. Section 31. Parcel Id's: 219360050, 2t936006A, 21936006C. 21936006B L_~_gend ~ Project Site NAFL, N JA DRIVE TH E PLANNING %'1~t' CEN,'rER. 3000 Feel I-.6 Tortolita Vistas Specific Plan Marana, Arizona EXHIBIT B Thc Bast half of Sactio:n 31, Township ll South, Range 13 East, Gila and Salt River Bas: arid Mcridis.~, Pima County, Arizona; EXCEPT the North half of the Northeas~ (~hmrt~ of the Northeast Quarte~ of said Section 31; BXCBPT the $o~th' 1040 fe~ of said ]~ast half of said Section 31; t/XCEPT the North 30 feet lying within Tortolita Road (now.known as Moore Road), a~cording to Book 2 of Road Maps page 14; records of Phna County, Arizona; EXCEPT the F~t 30 f~:t lying within Thomydale Road as established by in.m'ument re. corded in Docket 1064 at page 205, records of Pima County, Arizona; EXCEPT any portion lying within Camino de Manana Road No. 220, according to Book 2 of Road maps at .page 1 through 4, inclusive, records o£Pima C. ounty, Arizona. / 1 I /. / t I TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 5 TO: FROM: SUBJECT: MAYOR AND COUNCIL Barbara C. Berlin, Planning Director Resolution No.2005-02: Relating to the Silverbell Road Corridor Overlay District Design Review; ratifying the recommendation of approval by the Manager's Design Review Committee regarding design review for Northwest Medical Center. DISCUSSION APPLICANT: CRD20 L.L.C., represented by Rick Engineering Company, 1745 E. River Road, Tucson, Arizona 85718. LOCATION: The project is located in a portion of Block 20 of Continental Reserve and generally west of Silverbell Road and South of Continental Reserve Loop within a portion of Section 28, Township 12 South, and Range 12 East. PROJECT DESCRIPTION: The Silverbell Road Corridor Overlay District (S.R.C.O.D.) applies to all new commercial development occurring within its defined boundaries. A Design Review Overlay is superimposed over the S.R.C.O.D. The purpose of the Design Review Overlay is to guide the general appearance of sites and buildings within the district. The Manager's Design Review Committee including five (5) members and one (1) alternate was formed to review and provide recommendation to Town Council regarding all new commercial development within the S.R.C.O.D. Per the requirements of the S.R.C.O.D. the Manager's Design Review recommendation shall be forwarded by the Planning Department to Town Council for consideration, which "shall act to affirm, or reverse, in whole or in part, or modify the Design Review Committee's recommendation." On December 20, 2004 this Committee recommended approval of the Northwest Medical Center Design Review as presented based upon of the stated objectives of the S.R.C.O.D. The site plan includes eight (8) freestanding buildings that will be developed in two phases. This review pertains to phase one only of the project, which includes Building One as shown on the Northwest Medical Center Design Review TC 010405.doc accompanying site plan. Subsequent development of buildings Two through Eight shall require review and approval via the Manager's Design Review Committee and Town Council. This project will have traffic generation characteristics which may result in the need to signalize the intersection of Continental Reserve Loop and Silverbell Road. ATTACHMENTS Development Plan, locator map and artist rendering of facility. RECOMMENDATION WITH CONDITIONS Staff forwards Resolution No. 2005-02, ratifying the recommendation of approval from the Silverbell Road Corridor Overlay District Manager's Design Review Committee for Northwest Medical Center located in a portion of Block 20 in the Continental Reserve Block Plat, with the recommended conditions below: Subsequent development of Buildings Two through Eight as shown on the site plan dated December 14, 2004 shall apply for design review as per the requirements of the Silverbell Road Corridor Overlay District. The Developer shall provide a monetary assurance satisfactory to the Town Engineer for the installation of a new traffic signal at the intersection of Continental Reserve Loop and Silverbell Road at such time as it is warranted. SUGGESTED MOTION I move to approve Resolution No. 2005-02 with the recommended conditions. Northwest Medical Center Design Review TC 010405.doc -2- MARANA RESOLUTION NO. 2005-02 RELATING TO THE SILVERBELL ROAD CORRIDOR OVERLAY DISTRICT DESIGN REVIEW; RATIFYING THE RECCOMEDATION OF APPROVAL BY THE MANAGER'S DESIGN REVIEW COMMITTEE FOR NORTHWEST MEDICAL CENTER. WHEREAS, the Town of Marana approved and adopted the overlay district for the area known as Silverbell Road Corridor Overlay District on December 16, 2003 (Ordinance No. 03.27), located within the corporate boundaries of the Town of Marana, Arizona; and WHEREAS, Fidelity National Title Agency is the owner of approximately 10.2 acres within a portion of Block 20 in Continental Reserve generally located south of Continental Reserve Loop and west of Silverbell Road in Section 28, Township 12 South, Range 12 East and has applied to the Town of Marana for design review approval for a medical center; and WHEREAS, the Mayor and Council have considered the application at the regular Town Council meeting held January 4, 2005 and has determined that the recommendation of approval by the Silverbell Road Corridor Overlay District Manager's Design Review Committee for Medical Center should be ratified. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana, Arizona, that the recommendation of Manager's Design Review Committee regarding the design for Northwest Medical Center, submitted by CRD20 L.L.C., located south of Continental Reserve Loop and west of Silverbell Road, in Section 28, Township 12 South, Range 12 East, is hereby ratified with the following conditions: 1. Subsequent development of Buildings Two through Eight as shown on the site plan dated December 14, 2004 shall apply for design review as per the requirements of the Silverbell Road Corridor Overlay District. The Developer shall provide a monetary assurance satisfactory to the Town Engineer for the installation of a new traffic signal at the intersection of Continental Reserve Loop and Silverbell Road at such time as it is warranted. Marana Resolution No. 2005-02 Page 1 of 2 PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 4th day of January 2005. ATTEST: Mayor BOBBY SUTTON, JR. Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney Resolution 2005-XX Northwest Medical Center Design Review. doc Page 2 of 2 BiARAN TOWN OF MARANA Northwest Medical Center / s...c.o.=. =es'.n"ev'ew I Continental Ranch Pamel 9 Subject Property N 400 0 400 800 Feet Data Disclaimer The Town of Marana provides this map Information "As Is" at the request of the user with the understanding that It Is not guaranteed to be accurate, correct or complete and conclusions drawn from such information are the responsibility of the user. In no event shall The Town of Marana become liable to users of these data, or any other party, for any loss or direct. Indirect, special, Incidental or consequential damages, Including but not limited to time. money or goodwill, arising from the use or modification of the data. REQUEST I Ratify the reccomendation of approval from the Silverbell URoad Corridor Overlay DiStrict Manager's Design Review I Committee for Northwest Medical Center ® ® -- ® ~J J © ® © ® ® Northwest Medical Center - Marana Outpatient Clinic Block 20, Continental Rese~e 1~ Northwest Medical Center Moran(3 Outpatient Clinic ~ Northwest Medical Center Marana. I~11 Northwest Marana Outpafien J~ Northwest Medical Center Marana Outpatient Clinic '--iI I I I ! ~1~TCW~ LINE SEE SHEET L~ \ I Jill i~llt~!J lt~il~J' JjliJll] "1 I I rn 111 (~ -r 111 I'rl --i J~ Northwest Medical Center Marana Outpatient Clinic M~,TCW LINE SEE 5I.-tEET L~, - . ~ Outpatient Clinic ! · L"I LINE ~;:;: ~WEE~'/;~'l / I il, I I I I 0 I l [ j I ~ ~ Outpatient Clinic I * I I TOWN COUNCIL ~ MEETING TOWN OF MARANA INFORMATION .,~k~rANA ~ MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 6 TO: FROM: SUBJECT: MAYOR AND COUNCIL Frank Cassidy, Town Attorney Ordinance No. 2005.01: Relating To Real Estate; re-approving an exchange of real property located along the Santa Cruz River in northwest Marana due to a change in the effective date of the ex- change; authorizing the Mayor to execute an agreement with the Pima County Flood Control District and any deeds and other documents necessary to accomplish the exchange; and declaring an emergency. DISCUSSION This item was previously approved by Ordinance No. 2004.22 dated November 16, 2004. The originally approved land exchange agreement provided for an exchange not later than November 30, 2004. Unfortunately, the Pima County Flood Control District was not able to execute the agreement in a timely manner to allow for this date. The revised agreement now provides for an exchange not later than March 31, 2005. RECOMMENDATION Staff recommends adoption of Ordinance No. 2005.01 authorizing the Mayor to execute the re- vised exchange agreement with the Pima County Flood Control District. SUGGESTED MOTION I move to adopt Ordinance No. 2005.01. [00000436.D0C/] FJC/cd$12/2 7/04 MARANA ORDINANCE NO. 2005.01 RELATING TO REAL ESTATE; RE-APPROVING AN EXCHANGE OF REAL PROPERTY LOCATED ALONG THE SANTA CRUZ RIVER IN NORTHWEST MARANA DUE TO A CHANGE IN THE EFFECTIVE DATE OF THE EXCHANGE; AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE PIMA COUNTY FLOOD CONTROL DISTRICT AND ANY DEEDS AND OTHER DOCUMENTS NECESSARY TO ACCOMPLISH THE EXCHANGE; AND DECLARING AN EMERGENCY. WHEREAS, Mayor and Council previously approved by Ordinance No. 2004.22 dated November 16, 2004, an exchange of real property along the Santa Cruz River with the Pima County Flood Control District ("District"); and WHEREAS, the exchange was anticipated to occur not later than November 30, 2004; and WHEREAS, the District was not able to execute the agreement in a timely manner to allow for this date; and WHEREAS, the District and the Town desire to execute a modified agreement that au- thorizes the exchange to occur not later than March 31, 2005. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, AS FOLLOWS: SECTION 1. The exchange of lands as set forth in the document entitled "Agreement be- tween the Town of Marana and the Pima County Flood Control District Relating to the Exchange of Land along the Santa Cruz River" (the "Exchange Agreement") presented to the Mayor and Council concurrently with this Ordinance and attached as Exhibit A is hereby approved. SECTION 2. The Mayor is hereby authorized to execute the Exchange Agreement and any and all documents necessary or desirable to carry out the Town's obligations under the Ex- change Agreement. SECTION 3. The various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this ordinance. {00000437.DOC/} - 1 - FJC/cds 12/2 7/05 SECTION 4. BE IT FURTHER ORDAINED THAT since it is necessary for the preser- vation of the peace, health and safety of the Town of Marana that this ordinance become imme- diately effective, an emergency is hereby declared to exist, and this ordinance shall be effective immediately upon its passage and adoption. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of January, 2005. Mayor Bobby Sutton, Jr. ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00000437.DOC f} AGREEMENT BETWEEN THE TOWN OF MARANA AND THE PIMA COUNTY FLOOD CONTROL DISTRICT RELATING TO THE EXCHANGE OF LAND ALONG THE SANTA CRUZ RIVER THIS AGREEMENT ("Agreement") is made and entered into by and between THE TOWN OF M^P~N^, an Arizona municipal corporation (the "Town") and the PIMA COUNTY FLOOD DISTraCT (the "District"). The Town and the District are sometimes collectively referred to as the "Parties," and each is sometimes individually referred to as a "Party." RECITALS A. The Town and the District own various properties located along the Santa Cruz River in northwest Marana. B. The District has constructed a flood control levee along the north bank of the Santa Cruz River in northwest Marana. C. The Town desires to consolidate land holdings located north of the new flood control levee for purposes of owning and constructing a public riverpark and related amenities. D. The District desires to consolidate its ownership of lands south of the flood control levee for flood control purposes. E. The Parties desire for the Town to transfer three parcels of property located south of the flood control levee to the District in exchange for two parcels of District-owned land located north of the flood control levee. F. The parcels being exchanged are of substantially equal value. G. The Town is authorized to exchange land pursuant to A.R.S. § 9-407. H. The District is authorized to exchange land pursuant to A.R.S. § 48-3603 (C). ,4 GREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. Exchange of land. The Parties will complete the following exchange of land not later than March 31, 2005: (A) The Town to the District. The Town shall quit claim to the District the parcels par- ticularly described in Exhibit A, Exhibit B, and Exhibit C. {00000238.DOC / 5] Marana/Pima County Santa Cruz River Land Exchange - 1 - 12/16/2004 4:14 PM (B) The District to the Town. The District shall quit claim to the Town the parcels par- ticularly described in Exhibit D and Exhibit E. 2. Environmental representations. With respect to the property owned by it and being con- veyed to the other party pursuant to this Agreement, each party hereby represents and warrants that, to the best of that Party's knowledge, no pollutants, contaminants, toxic or hazardous sub- stances, wastes or materials have been stored, used or are located on the property or within any surface or subsurface waters of the property; that no underground tanks have been located on the property; that the property is in compliance with all Federal, State, and local environmental laws, regulations and ordinances; and that no legal action of any kind has been commenced or threat- ened with respect to the property. 3. Environmental inspection rights. Each Party shall permit the other to conduct such in- spections of the property as deemed necessary to determine the environmental condition of the property. If the investigations reveal contamination that exceeds what is allowed under applica- ble environmental laws and regulations, then the Party to whom the property is to be conveyed may terminate this Agreement. 4. Notices. All notices, requests and other communications under this Agreement shall be given in writing and either (i) personally served on the party to whom it is given, or (ii) mailed by registered or certified mail, postage prepaid, return receipt requested, or (iii) sent by private overnight courier such as Federal Express or Airborne, or (iv) transmitted by facsimile (provided that a confirming copy of the facsimile transmission is mailed on the date of such transmission), addressed as follows: If to the Town: TOWN OF MARANA 13251 N. Lon Adams Road Marana, Arizona 85653-9723 (520) 682-3401 Fax (520) 682-9026 (Fax) If to the District: Pima County Administrator 130 W. Congress Tucson AZ 85701 (520) 740-8751 (520) 740-8171 (Fax) All notices shall be deemed given when delivered or transmitted by facsimile or, if mailed as provided above, on the second day after the day of mailing, and if sent by overnight courier, on the next day after the date of deposit with the courier. Any party may change its address for the receipt of notices at any time by giving written notice thereof to the other parties in accordance with the terms of this section. The inability to deliver notice because of a changed address of which no notice was given, or rejection or other refusal to accept any notice, shall be deemed to {00000238.DOC / 5} Marana/Pima County Santa Cruz River Land Exchange 2 12/16/2004 4:14 PM be the effective receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. 5. Brokers' commissions and fees. The Town and the District warrant, each to the other, that there are no fees or commissions owing to any broker or other person for bringing about the exchange contemplated by this Agreement. The Party under whom any claim to a broker or finder fee, commission or other compensation is made in connection with this transaction shall indemnify and hold harmless the other Party from and against the claim and all costs, attorneys' fees, witness fees, and other expenses and liabilities incurred in connection with it. 6. Miscellaneous. (A) This Agreement may not be modified except in a writing signed by the Parties. (B) Time is of the essence of this Agreement. (C) This Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona, and any lawsuit to enforce any provision of this Agreement or to obtain any remedy with respect to this Agreement shall be brought in the Pima County Superior Court, and for this purpose the Parties expressly and irrevocably consent to the jurisdiction of the Pima County Superior Court. (D) If either of the Parties fails to perform any of its obligations under this Agreement or if a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the defaulting party or the party not prevailing in the dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party in enforcing or establishing its rights under this Agreement, including, without limitation, court costs and reasonable attorneys' fees. (E) The captions and section numbers appearing in this Agreement are inserted only as a matter of convenience, and do not define, limit, construe or describe the scope or in- tent of such sections or articles of this Agreement. (F) This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original and all of which, taken together, shall constitute one and the same agreement. (G) This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors in interest and assigns; provided, however, that no assignment of this Agreement shall in any way relieve the assignor of its obligations under this Agreement. (H) This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. (I) Exhibits referred to in this Agreement are attached to and incorporated by refer- ence as if set forth in full in this Agreement. {00000238.DOC / 5} Marana/P#na County Santa Cruz River Land Exchange 3 12/16/2004 4:14 PM IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the last date set forth below their respective signatures. TOWN: TOWN OF MARANA, an Arizona municipal corporation DISTRICT: PIMA COUNTY FLOOD CONTROL DISTRICT, a political taxing subdivision of the State of Arizona By: Bobby Sutton, Jr., Mayor Date: ATTEST: By:. Sharon Bronson, Chair of the Board Date: ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Lori Godoshian, Clerk of the Board APPROVED AS TO FORM: Frank Cassidy, Town Attorney Deputy County Attorney {00000238.DOC / 5} Marana/Pima County Santa Cruz River Land Exchange 4 12/16/2004 4.'14 PM ~.:~, ~ ~ - ... ,-~ ~ ~ .... ;' .;., ~' ~ ., , , Pim8 Coun~ Flood District Land Exchsnge kocator TOWN OF MARANA PARCEL 2A . A portion of the southwest quarter df the northeast quarter of Section 33, Township 11 South, Range 11 East, Gila and Salt River Meridian, Pima County, Arizona; Said parcel being more particularly described as follows;.. COMMENCING at the east quarter comer of said Section 33, said corner being a found ½" rebar without a tag; THENCE South 89°40'56'' West, 1774.12 feet along the south line of said northwest quarter to the POINT OF BEGINNING, said point being a set ½" rebar tagged "RLS 16555"; THENCE continuing South 89°40'56'' West, 207.46 feet to the southwest comer of the southdast quarter of the southwest quarter Of said northeast quarter of Section 33, said corner being a found ½" rebar tagged "R.L.S. 22759"; THENCE continuing South 89040'56'' West, 63.14 feet (measured, 63.'15 f~et record) to a found ½" rebar tagged "R.L.S. 22759"; THENCE North 30°00'17'' West, 373.40 feet to a set ½" rebar tagged "RLS 16355"; THENCE South 54°51'46" East, 559.23 feet to the POINT OF' BEGINNING. The above described parcel contains an area of 1.01 acres, more or less. HDR/Jehnsen Brittain. 379 N Main Avenue Tucson. A2 85701-82;'2 R~one: 1520! 6ZB-3636 ' Fax: i520) 88~-2SZ2 w,','w, hdrinc.~m Exhibit A ~ -~ LEOEND ,_,Il ~.,,,.,...~ u~ Fnd. 2" Open P;pe =Set 1/2" Rebar :~ogged "RLS 1~55" =Found Survey Monument As Describ% '..North Half /At HL 1/4 Car. Sec. 33 ! FoUnd 1/2" Rebor 16555" Sec. JJ 217-#9-013E Town Of Marona s 8~ Exst. Hondro// Fnd. 1/2" Rebsr-No 7bg At E-. 1/4 Car. Sec. 33 ~ _ \ i 774. 89'40'56"W Point Of Bec' South Half Sec. 33 Acres +/-) PO~ 0 E ~=~' ~ ~ o~ ~POR. F S.. 4 OF N.E. 4 ~ , '~"~'~'~""~'~--"'""'"""~'"'"'"'"""~ OF SECn0N 33 ~'"'""'=~""'""""='~"'"""' ....... ~~ T0~SDP ~ S0U?H ~ ~?OP0SED P~C~L 2A l J ~ 6$P2A.DWC TOWN OF IvlARANA PARCEL 4A A porti% of Blocks A, 'B, C and ? Of Gladden Farms, Blocks 1 thru 25 and A thru F, being a subdivision of the east half of the nOrtheast quartet of-section· 33 and Secdon. 34, Township 11 "South, Range 11 East, Gila and Salt River Meridian, Pima County, Arizona, according to the plat· · ·thereof at the Pima Count), Recorders office at' Book 55, Page 60 of Maps and Pla'tS.. Said parcel be!ng more'particularly described as ~'ollows;.. · COMMENCING at'the southwest comer of said Section 34, Said corner being a found 2" aluminum ~apped rebar stamped "WLB R.L.S. 12214" and the POINT OF BEGINNINGi THENCE North 0°07'28" West, 1393.34· feet al6ng the west line of the southwest quarter of Said · -' Section 34 io a set ½" rebar tagged "RLS 16555",'from said point the west quarter comer of said Section .34 bears North'0°07'28;"West, 1260'.35 feet, said west quarter comer being a found ½" rebar without a tag; · .THENCE South 54051'46" East, 34·.75 feet tO a set ½" reba3 tagged· "RLS 16555"; :'. .THENCE S~uth 56~14'59'', 1'60.65 'feet to a point 'of Curyature on a tan. gent ·curve concave to the northeast, said· point being a set ½" ~ebar tagged "RLS '16555"; : THENCE .southeasterly. along the .arc of.said cu~e to the left, having a radius of 9,800.00 feet,. t.hrough a. central angle· of 11 °55'43", .for an arc length ,of 2040.31 feet to a point of tangen~y, .. said point bei.rig a se~ ½" rebar tagged "RI~ 16555"; .. " ··THENCE South 68°'10'~3''' East, 868~99 feet to'the south line· of the southeast quarter of. said Section 34 to a Set: ½'" rebar tagged ,,RLS 16555", from' Said point tl~e southeast comer-of said .. Sectiofi bears North 89°45'35, East, 2504'.06 ~'eet, said comer being a found-½", rebar tagged· · 'Pima County 3. Hwy Dept"; " THENCE South 8'9°45~35'' West, 131.86 feet along said .south~ line to :the s0uthquarter comer; ." said comer.being.a found P.K. pail; .- - · " THENCE Sohth 89°45'3t".West,"2635.65 feet al6ng the south line of the southwest quarter of Said Section 34 tO the' POINT OF BEGINNING. :,'. HDR/Jolmson IBrit~ain 37B N Main Avenu~ Tucson. AZ 85701 Phone: ~5201628-3636 I' Fax: 15Z01862-2922 · I' wv,~,:hdfir~c.com Exhibit B The abov6 described parcel contains an area of 39.59 acres, more or'less. The above described parcel is subject to alt matters of record shown upon the plat of said Gladden Farms. including that portion of established Sandario Road according to proceedings No. 705 and ad~ording to that map at' the Pima County Recorders Office at Book 5, Page 84 of Road Maps which is included in the stated 'acreage. IIII III Fno. i/'£" /~eber-/v'o 1/"4 CDr. qec. 54 LEOEND O--Set 1/2" Rebor Togged "RLS 16555" ®=Found Survey Monument As Described 54.75' 54'51 '46"E gladden Farms ~ P Bk. 55 Pg. ' ""'" S 89'#5 '31 "W 2635. 65 ',",'., ; ~ i Found P. K. ~',~oil / '~' At 5. i/4 CDr. Sec. ~ Found 2" ACP '~EL$' ~221~ '" " A~ S'.L~ Cot. Eec. ~ N. I4/. 1~4 Sec. ~','"."." ." ." A =P, rop. Porcel 4A ~"~:~",';".,:i'2~ (59.59 Acres BRITAIN 1.~ i EEP4A. DWG ~)LJ.I~ & ASSI)CIAlqES~ LLC 5310 E. PI~ STFMi--T ~, ARIZON~ B5712 520-321-9720 S20-321-9719 CFAX) Job No. 98-113-1R LEGAL DESCRIPTION December 28, 1998 PREPARED FOR: Granite Construction Company BY: ROLLINS ~ ASSOCIATES~ LLC Legal descripticn for that part of the Southwest ene-quarter of Section 1, TWP 12 S, RNG I! E to be dedicated to a riparian habitat. All that of the North one-half of the $outhuest one-quarter of Section I, Township 12 South, Range 11 Eastt Gila and Salt River Meridian, Pima County, ~rizona lying Southerly of the following described line: COMMENCING at the West one-quarter corner of said Sectton I, thence South O0 degrees, 34 minutes, 52 seconds East along the West line of said section 1 a distance of 1~9. I3 feet to the POINT OF BEGINNING; thence North 89 degrees~ 25 minutes~ 50 seconds East a distance of 97.22 feet to a POINT of CURVATUR~ to the right; thence Southeasterly along the a~c of a curve having a rad~u~ of 6%0.95 feet, through a central angle of 21 de~rees, 27 minutes, 08 seconds, a distance of 2606.27 ?eet to the East line of said Southwest one-quarter and the £ND OF- TH~ LINE. Contzining 2,715,900 square feet or 62.349 acres. This 1.egal description ~a ~.r. itten under my ~upervision, i 1 Exhibit C NO SOALE 0 7/4 CORNER SEO IY~'H ; tEIPA~tAN /"iA~/?A T DRA H/lNG TO ACCOMPANY A LEGAL DESORIPT/ON FOR A R/PAR/AN HABITAT IN SEO 1, ~ 12 S, RNG 11 E, G/LA AND SALT RIVER MERIDIAN, P/MA COUNTY;, ARIZONA 98- 113- TOWN OF MARANA PROPOSED PARCEL 1 A portion of the north half of Section 33, Township 11 South, Range 11 East, Gila and Salt River Meridian, Pima County; Arizona. ' Said parcel being more particularly described as follows; COMMENCING at the west quarter comer of said Section 33, said comer being a found 2" open pipe; THENCE North 0o34'34" West,· 1321.02 feet along the west line of said north half, from said point of tlqe northwest comer of said Section 33 bears North 0°34'34"West, 1321.02 feet, said northwest comer being a found 3" brass disk in hand hole stamped "T.O.M.R.L.S. 18552"; THENCE N~rth 89041'26" East, 400.00 feet (measured and record) along the south line of the northwest quarter of the northwest quarter of said section 33; THENCE North 0034'34'' West parallel with the west line of the northwest quarter of said Section 33, 91.07 feet to the POINT OF BEGINNING, said point being a set ~A" rebar tagged "RLS 16555"; THENCE continuing North 0o34'34" West'along said parallel line 63.93 feet, to a set IA" rebar tagged "RLS 16555"; THENCE North 89°41 '26" East parallel with the south line of the northwest quarter of the northwest quarter of said Section 33, 172.17 feet to a point on a non-tangential Curve with a local radial bearing of North 18o10'06" West, Concave to the north, said point being a set V2" rebar tagged "RLS. 16555"; THENCE easterly along the arc of said curve to the left having a radius of 1666.85, through a central angle of 1°09'37", for an arc. length of 33.76 feet to a point of tangency, said point being a set ¼" rebar.tagged "RLS 16555"; THENCE North.70°40'17'' East, 16.64 feet to a set tagged "RLS 16555"; THENCE. North 0o34'34'' West parallel with the west line if the northwest quartef of said Section 33, 158.53 feetto a point from which a found i ~A" aluminum Capped pin with punch at the intersection of Honea Drive with Sandy Street bears South 89°41. '07" West, 190.02 feet, said streets established by the plat' of Honea Heights at the Pima County Recorders Office at Book 12 Page 58 of Maps and Plats~ HOR/Joknson Britlain 378 N Main Avenue r~cson, AZ 85701-82Z2 Phone: {5Z01 628-3636 Fax: 1520) 8~2-2822 www.hdfinc.com Exhibit D THENCE North. 89°41 '07., East, 726.44 fee[ to a found 1 t/2" alumlnum capped pin with a punch at the'interSection` of Sandy Street with Morgan Drive;' · ' THENCE North 89°40'52'' East, 696.46 feet Imeasured, 696.35 feet record) to a found railroad spike with cross dut at the intersection of Sandy.Street with Hector Drive; .THENCE North 89°41'32'' East, 242.64 feet to a set sA" rebar tagged· "RLS' 16555", from which a found railroad, spike With cross cut bears North 89°41'32" East, 347.48.feet; . . . THENCE South. 30°00'17'' East, 1526.45 feet to 'a set ~/2" rebar 'tagged "RLS 16555", from 'which h fouiid. ~2'~ rel~/r ta~ged';'R.L.S:. 22759~' bears South 30° 00' 17't East, 373.;40 feet; .' THENCE North 54°51'46" West, 580198.feet'to a point'of curvature'on.h.tangent curve concave'. to the South,' said point being a set I/2" rebar iago, ed "RLS 16555"; . .... 'THENCE west'erly, aiong the arc of ~aid curve to' the'left having a radius 0f 4'07~.45 feet, through a central angle of 32o42, 08'; l~or an arc length'of. 2,324'.96 feet to the POLNT'OF BEGINNING.. The above described parcel Contains an area-of 24193 acres,'more.or less. Fnd. 3" Brass Hand Hole S~omped Fnd. 3" Bmo~'s D;sk In Hand Hole At N. !~4 Car. ~ . O.M. RLS 18552" /a~ t,z.w, car. Sec. ~ Moore 400. 00' 89'4 ? '26 "F. i,-: Point Of Bec ® 888. 85' '09 '37" =3,5. 76' R=40 73. 45' A=32'42'08" L =2524.96' North Half Fnd. 2" Af W. 1/'4 Car. Sec. South Half Sec. 1B~ll FR~,.NK D. ABL~.L · . i N JJ Fnd. 1/2" Rebar-No At E. 1ff 4 Con Sec. l '"" '""""7~ =P. rop. ...... Parcel No. 1 ?'>'?/'>"'1 (24.93 Acres 4-/-) Sc~e: 500' SC~ I~RITFAIN LEGEND =Sef 1~2" Rebor Togged "RLS 16555" =Found Survey Monumenf As Described OF SECTION 33 TOWNSHIP 11 SOUTH PROPOSED PARCEL RANGE 11 EAST G & S.R.M., P~A CO., AZ.PIMA COUNTY PROPER~ 1Jl~6Pl.dwg TOWN OF MARANA PARCEL 5 A portion of the northeast quarter ot~Secfion 3, Township 12 South, Range 11 East, Gila and Salt River Meridian Pima County, Arizona. Said Parcel being more particularly described as follows: COMMENCING at the northeast comer of said Section 3, said comer being a foand V2" rebar tagged "Pima County 3 Hwy Dept", said comer being the POINT OF BEGINNING;. THENCE South 0°11 '40'East, t014.51 feet along the east line of said northeast quarter to a set V2" rebar tagged "'RLS 16555"; from said point .the east quarter comer 'bears South 0° 11' 40" East, 1627.22 feet, said point.being a found ½" rebar tagged "PCHD #3"; THENCE North 68010'43'' West, 2701.01 feet to the north line of said northeast quarter to a set ½" rebar tagged "RLS 16555", from said point the north quarter comer.of said Section 3 bears South 89045'35" West, 131.86 feet, said quarter comer being a foi~nd P.K. nail without a tag; THENCE North 89o45'35'' East, 2504.06 feet along said north line to the POINT OF BEGINNING. The above described parcel contains an area of 29.16 acres more or less. HO R/Johnson BdttaJn 378 N Main Avenue Tucson. AZ 8,5701-8222 Pl~ore: (5201E28-3E36 Fax: (520t 882-297.2 ,.v,./~ hddnc.com Exhibit E J !' ' 'cb N LEGEND cb · --Set 1/2" Rebor Togged "RLS: !6555" ~, ~11 ® =Found Sun/ex Monumen~ As Described ~ ~ Gladden Farms N 89'45'~5"E Point Of~ Beg. inning_ "P/mE Coun(y J H~v/ Dept"~ ~ N.E. CDr. Sec. 3 ~$' I / <'z~ 0o. ~,~. oz z4 N.E. 1/4 Sec. J BRITTAIN POR. OF THE N.E. 1/4 OF SECTION g TOWNSHIP 12 SOUTH RANGE 11 EAST G & S.R.M., PBLi CO., AZ. £xst. Hondroff Dr~w~w FDA RtY 04 PROPOSED PARCEL 5 PIMA COUNTY PROPERTY TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 7 TO: FROM: SUBJECT: MAYOR AND COUNCIL Frank Cassidy, Town Attorney Resolution No. 2005-07: Relating to Water; approving and au- thorizing the Mayor to execute an agreement with Cortaro- Marana Irrigation District and Gladden Forest LLC relating to the use of the non-potable secondary residential water system fa- cilities within the Gladden Farms development project; and de- claring an emergency. DISCUSSION The Town, Cortaro-Marana Irrigation District (CMID), and Gladden Forest LLC have negotiated an agreement relating to the use of the Town's non-potable secondary residential water system facilities constructed and being constructed within the Gladden Farms development project. The agreement provides for CMID to use the non-potable system at no cost to satisfy CMID's legal water service obligations. Because the Arizona Department of Water Resources has not yet given an opinion concerning the effect of this arrangement, this agreement may require amend- ment in the future to address any additional issues raised as a result of the Department's feed- back. RECOMMENDATION Staff recommends adoption of Resolution No. 2005-07, approving and authorizing the Mayor to execute the agreement with CMID and Gladden Forest. SUGGESTED MOTION I move to adopt Resolution No. 2005-07. {00000455. DOC/} FJC/cds 12/29/2004 4:11 PM MARANA RESOLUTION NO. 2005-07 RELATING TO WATER; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH CORTARO-MARANA IRRIGATION DISTRICT AND GLADDEN FOREST LLC RELATING TO THE USE OF THE NON-POTABLE SECONDARY RESIDENTIAL WATER SYSTEM FACILITIES WITHIN THE GLADDEN FARMS DEVELOPMENT PROJECT; AND DECLARING AN EMERGENCY. WHEREAS, the Cortaro-Marana Irrigation District (CMID) has certain obligations for water delivery under its articles, by-laws, rules and regulations; and WHEREAS, the Gladden Farms development project is transforming land formerly used for farming purposes and served with irrigation water by CMID to residential housing; and WHEREAS, the Town has required Gladden Forest LLC, the Developer of the Gladden Farms development project, to construct and install a non-potable secondary residential water system for the delivery of non-potable water to each individual lot within Gladden Farms; and WHEREAS, the Town, CMID, and Gladden Forest LLC desire to enter into an agreement for the use of the non-potable water system which will allow CMID to comply with its articles, by-laws, rules and regulations. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the agreement between the Town of Marana, CMID and Gladden Forest LLC, attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the aforementioned agreement. IT IS ALSO FURTHER RESOLVED THAT since it is necessary for the preservation of the peace, health and safety of the Town of Marana that this resolution become immediately {00000456.DOC/} - 1 - FJC/cds 12/29/2004 4:30 PM effective, an emergency is hereby declared to exist, and this resolution shall be effective immediately upon its passage and adoption. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of January, 2005. Mayor Bobby Sutton, Jr. ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00000456.DOC/} -2- When Recorded Return To: Ms. Sidney Smith Cortaro-Marana litigation Distdct 12253 W. Gfier Road Marana, Adzona 85653 Pima County, Adzona AGREEMENT To: Cortaro-Marana Irrigation Distdct As the master developer of the Gladden Farms community and on behalf of its owner, Gladden Forest LLC, ("Gladden Farms"), I am wdting to formalize our agreed upon position regarding Gladden Farms, the Cortaro-Marana Irrigation Distdct (CMID), and the delivery of CMID irrigation water. The legal description of Gladden Farms property intended to be affected by this agreement is attached and made a part hereof. Gladden Farms is committed to a long-term, positive, and mutually beneficial relationship between Gladden Farms and CMID and the Town of Marana. Please be assured that all property owners have been and will be fully informed that they are acquiring property within the CMID's boundaries, and within the Town, that the property tax statements include a tax component levied by the CMID, that they will receive potable water from the Town, but will not be supplied with gravity-fed irrigation water. Based on the non-potable secondary water system being installed by our agents throughout Gladden Farms to each lot and to the high-elevation comer of each quarter section, original ownership of which system is being transferred to the Town, there will be available for transportation to Cortaro-Marana Irrigation Distdct a supply of pressurized non potable irrigation water eventually available to be delivered to each property owner and throughout the landscaped common areas. On behalf of itself, its successors and assigns, Gladden Forest LLC agrees it will along with the District, request the Town to grant, and Town does grant at no expense to CMID such irrevocable right of use of and access to the non-potable secondary residential water system facilities being installed and easements as necessary to be in compliance with the bylaws of CMID. *' We understand that this system will not only provide a useable commodity for each property tax-paying landowner, but will also serve to reduce the potable water demand throughout the community. The CMID and the Town of Marana should be complimented for ardving at a solution that provides multiple benefits at a reasonable cost, while still conforming to the requirements and goals of each organization. * The Town's grant of this irrevocable right of use and access to the Town's non-potable secondary residential water system facilities is based on and subject to the assumption that the Adzona Department of Water Resources (ADWR) will allow CMID to deliver non-potable water through these Town-owned facilities without adversely affecting the dghts or obligations of either the Town or CMID, absent which ADWR allowance the Town and/or Gladden Forrest LLC will, without cost to CMID, otherwise make available easements and/or rights-of-way sufficient to allow CMID to comply with its Articles, Bylaws, rules and regulations in the delivery of non-potable water. GLADDEN FOREST LLC By: Dean F. Wingert, Senior Vice President ACCEPTED by Cortaro-Marana Irrigation District, Pima County, Adzona, a political subdivision of the State of Ari/~a By: rthur B. Pacheco, Jr.~'Preside~,~MID ACCEPTED by the Town of Marana, a political Subdivision of the State of Arizona By: Michael Reuwsaat, Town of Mamna Manager STATE OF ARIZONA ) )ss. County of Pima ) On the ~ day of ,2004, the foregoing instrument was acknowledged before me by Dean F.Wingert, the Senior Vice President of Gladden Forest LLC, who confirmed authority to execute the above on behalf of Gladden Forest LLC. My Commission Expires: Notary Public STATE OF ARIZONA ) )ss. County of Pima ) Thee fo,regoin~.inst~m, ent was ~cknow, I,edge~ before me this//~z//' day of ~.~,~ 2004, by/-//2_~.~,,~ 7'~'. ~-'",4,,,~,~:the ~'/'2~ f/~/~,~,,7'-of Cortaro-Marana Irrigation District, Pima Count~ Adzona, a p01iticai-subdlVision Of the 'S{ate-0f A-ri'z(~na, who confirmed authority to execute the above on behalf of Cortaro-Marana Irdgation Distdct. ~~._..~~ NOtary Publj~-// ' ' My Commission Expires: SIDNEY B. SMITH Notary Public - Arizona Pin~ County My Commission Expires ,May 6, 2008 -2- STATE OF ARIZONA ) )ss. County of Pima ) The foregoing instrument was acknowledged before me this ~ day of , 2004, by the of the Town of Marana, a political subdivision of the State of Arizona, who confirmed authority to execute the above on behalf of the Town of Marana. My Commission Expires: Notary Public TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 8 TO: FROM: SUBJECT: MAYOR AND COUNCIL Barbara C. Berlin, Planning Director Resolution No.2005-05: Relating to Subdivisions; approving a Preliminary Plat for Hidden Springs. DISCUSSION APPLICANT: Hidden Springs LLC, 6262 N Swan Road #200, Tucson, Arizona, represented by their engineering firm, Trimble Engineering Services, 2798 W Appaloosa Road, Tucson, Arizona 85742. LOCATION: West of Tortolita Road at its terminus, in a portion of Section 26, Township 12 East, Range 11 South, bounded by Heritage Highlands Subdivision to the East and vacant property to the North (Tortolita Preserve), South and West. PROJECT DESCRIPTION: Primary access to the proposed Hidden Springs preliminary plat is from Tortolita Road, a potion of which is a dirt surface. This section of road will be improved by the developer to a chip seal surface from the point at which the current improvements end to the point of connection of on- site circulation for Hidden Springs. On-site circulation is served by a private cul-de-sac street described as, "Chavez Ridge Place." Chavez Ridge Place shall be improved to an all-weather access surface per the specifications of the Town Engineer. The lots are proposed to operate on individual on-site wastewater disposal systems. A conceptual approval was granted by Pima County Department of Environmental Quality provided that a waiver is acquired for each parcel upon identification of an address or parcel identification number. Approval should be received prior final plat approval. The gross site area is 10 acres with a maximum allowable site disturbance of 20%, or 87,199 square feet, and a total proposed disturbed area of 85,758 square feet. The allocation of allowable site disturbance includes each of the five lots which disturb 47,265 square feet for an average lot disturbance of 9,453 square feet. Private street and onsite utility easements account for the remaining disturbance. The Natural Undisturbed Open Space to be preserved on site shall be placed into a conservation easement and shall be duly noted on the final plat. PRV02096 Hidden Springs TC 010405.doc During project construction mass grading, mass blading or mass foundation pouring shall be prohibited on-site and each lot shall be staked to ensure the 20% site disturbance is not exceeded. Further, prior to construction of the site all viable small vegetation shall be removed and transplanted on-site, the removal of any tree greater than 6 inches in diameter and 4 ½ feet above grade, or Saguaros greater than 8' feet in height, is prohibited unless authorized by the U.S. Fish and Wildlife Service via the proper protocol. Maximum building height is 25 feet. A portion of the rear yard on Lot 3, as shown on the preliminary plat, is designated as a Federal Emergency Management Agency (F.E.M.A.) zone "AO" limits. No building, grading, or improvements will be allowed in this area to be enforced by CC&R's. RECOMMENDATION The Town of Marana Planning Commission and staff recommend approval of Resolution No. 2005-05 approving a Preliminary Plat for Hidden Springs with the following conditions: RECOMMENDED CONDITIONS 1. A Conservation Easement shall be applied to the 80% Natural Undisturbed Open Space. A notation regarding the Conservation Easement shall be recorded with the final plat. 2. A 15-foot public trail easement adjacent to lots 1 & 2 is to be shown and dedicated on the Final Plat as, "EPCTSMP trail #176." o No approval, permit, or authorization of the Town of Marana authorizes the applicant and/or landowner to violate any applicable federal or state laws or regulations, or relieves the applicant and/or landowner from responsibility to ensure compliance with all applicable federal and state laws and regulations, including the Endangered Species Act and the Clean Water Act. You are advised to retain appropriate experts and/or consult with appropriate federal and state agencies to determine any actions necessary to assure compliance with applicable laws and regulations. SUGGESTED MOTION I move to approve Resolution No. 2005-05. PRV02096 Hidden Springs TC 010405.doc -2- MARANA RESOLUTION NO. 2005-05 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING THE HIDDEN SPRINGS PRELIMINARY PLAT, CONSISTING OF A 5-LOT SINGLE FAMILY RESIDENTIAL SUBDIVISION ON APPROXIMATELY 10 ACRES LOCATED WEST OF TORTOLITA ROAD AT ITS TERMINUS IN A PORTION SECTION 26, TOWNSHIP 11 SOUTH, RANGE 12 EAST. WHEREAS, the Marana Planning Commission heard from the owner and staff at the regular Planning Commission meeting held May 26, 2004 and voted unanimously to recommend approval of Hidden Springs Preliminary Plat to the Town Council; and WHEREAS, the Marana Town Council has heard from the owner, staff, and members of the public at the regular Town Council meeting held January 4, 2005 and has determined that said Plat should be approved; and NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana, Arizona, that the Hidden Springs Preliminary Plat, an 5-lot single family residential subdivision located west of Tortolita Road at its terminus in a portion Section 26, Township 11 South, Range 12 East. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 4th day of January 2005. ATTEST: Mayor BOBBY SUTTON, JR. Jocelyn C. Bronson Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney Marana Resolution No. 2005-05 Page 1 of I ABANA 'I-OW~ OF MARANA Subject Property Hidden Springs Preliminary Plat CASE NO. PRV-02096 Hedtage Highlands N 1000 0 1000 2000 Feet I ~ Data Disclaimer The Town of Marane provides this map information "As Is" at the request of the user with the understanding that it la not guaranteed to be accurate, , correct or complete and conclusions drawn from such information are the i responsibility of the user. In no event shall The Town of Marana become liable to users of these data, or any other party, for any loss or direct, indirect, special, incidental or consequential damages, Including but not limited to time, money or goodwill, arising from the use or modification of the data. REQUEST Request for preliminary plat approval for a five (5) lot single family residential subdivision on approximatley 10 acres TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2005 AGENDA ITEM: IX. B. 9 TO: FROM: SUBJECT: MAYOR AND COUNCIL Frank Cassidy, Town Attorney Resolution No. 2004-153: Relating to Real Estate; approving and au- thorizing the Mayor to execute the Beacon Hill Communications Site Lease and Settlement Agreement; and declaring an emergency. This item was originally scheduled for Council approval on November 16, 2004, but was continued. DISCUSSION The Welter family owns Beacon Hill, the peak west of Continental Ranch where the Marana Po- lice Department (MPD) radio repeater site has been located since about 1993. Until 1999, the Town paid Nextel and its predecessor company $780 per month to operate the MPD communica- tion system. In 1999, Nextel ceased operating MPD's communication system and donated the equipment then being used by MPD to the Town. From 1999 to now, the MPD repeater site has remained on Beacon Hill without a formal lease and without compensation to the Welters. The Town is now replacing the MPD communications system with a new state-of-the-art Mo- torola system, and needs to make substantial improvements to the Beacon Hill storage building that will house the system. Before doing so, the Town needs to formalize its Beacon Hill lease with the Welters. This proposed Beacon Hill Communications Site Lease and Settlement Agreement formalizes the Town's Beacon Hill lease by providing for a monthly payment of $800 (adjusted upward and annually by 3% plus any applicable taxes and prorata property costs, and settles for a single $40,000 payment any possible back rent claim the Welters may have for the period the Town was using the property without a formal lease. Unfortunately, formalization of the Town's Beacon Hill lease will force MUSD to make direct formal arrangements with the Welters concerning MUSD's radio equipment, which has until now been housed on Beacon Hill with MPD's communications equipment. This lease does not permit the Town to sublease any portion of the site to third parties, including MUSD. Assuming that appropriate arrangements can be made among the Welters, MUSD, and the Town, it may be possible for the MUSD communications equipment to continue to be housed with the MPD com- munications equipment, but with no financial payment to the Town. ATTACHMENT Beacon Hill Communications Site Lease and Settlement Agreement. {00000309.D0C / 3} FJC/cds 12/27/04 RECOMMENDATION Staff recommends adoption o£ Resolution No. 2004-153, approving and authorizing the Mayor to execute the Beacon Hill Communications Site Lease and Settlement Agreement. SUGGESTED MOTION I move to adopt Resolution No. 2004-153. {00000309. DOC/2} -2- FJC/cds 10/25/04 MARANA RESOLUTION NO. 2004-153 RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE BEACON HILL COMMUNICATIONS SITE LEASE AND SETTLEMENT AGREEMENT; AND DECLARING AN EMERGENCY. WHEREAS, since approximately 1993, Marana Police Department ("MPD") communication equipment has continuously been located on Beacon Hill, located west of Continental Ranch; and WHEREAS, the Town has not had a formal agreement to locate the MPD communication equipment on Beacon Hill since 1999; and WHEREAS, the Town desires to execute a formal lease to allow the Town to install a new communication system on Beacon Hill and to compensate the owner of Beacon Hill for the Town's past use of the site without a formal lease; and WHEREAS, the Mayor and Council of the Town of Marana feel it is in the best interests of the public to enter into this lease. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Beacon Hill Communications Site Lease and Settlement Agreement, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of January, 2005. ATTEST: Mayor Bobby Sutton, Jr. APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney {00000308.DOC/} FJC/cds 12/27/04 Beacon Hill Communications Site Lease and Settlement Agreement THIS AGREEMENT is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation ("Town") and THE ESTATE OF IRENE WELTER, DECEASED, BY AND THROUGH HER PERSONAL REPRESENTATIVE, BILL WELTER ("Welter"). The Town and Welter are sometimes referred to collectively as the Parties. RECITALS A. Welter owns the parcel of land (the "Land") and communications tower (the "Tower") particularly described in paragraph 1 below. B. In or around 1993, the Town began paying Comtronix (which was later bought out by Nextel Communications) a monthly fee for the operation of the Marana Police Department ("MPD") communication system. C. In approximately 1999, Nextel ceased operating MPD's communication system, and donated the equipment then being used by MPD to the Town. D. The MPD communication equipment has continuously been located on the Land since approximately 1993, when Comtronix placed MPD's radio communications repeater equipment within a small building on the Land (the "Building") and attached an antenna to the Tower. E. From about 1999 to the date of this Agreement, the Town has not paid for a lease or sublease for the purposes of having its equipment located on the Land. F. The Town is in the process of replacing its MPD communications system with a new system. G. To accommodate the new MPD communications system, the Building needs to be substantially improved. H. Communications equipment owned by third parties is currently located in the Building, but like the Town none of these third parties has a current lease with Welter. I. Welter wants to control whose communications equipment is located on the Land and will therefore not permit the Town to sublease space within the Building to third parties. J. The Parties now desire to formalize a lease to allow the Town to refurbish and rebuild the Building, to allow MPD communications equipment to continue to be located in the Building, and to compensate Welter in settlement of Welter's claim to compensation for the Town's past use of the Building and the Tower. ~I GREEMENT NOW, THEREFORE, based on the foregoing Recitals, which are incorporated here by this reference, the Parties agree as follows: 1. Premises. The "Premises" that are the subject of this Agreement consist of all of the following: (a)the Building and the approximately 600 square feet of the Land where the {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MARANA/WELTER LEASE (~ SETTLEMENT AGREEMENT PAGE 1 Building is located and a reasonable area immediately surrounding the Building to accommodate the Town Facilities (see paragraph 10 below, (b)antenna space on the Tower located on the Land, and (c)and all access and utility easements necessary or desirable for the use of the Building and the Tower for the installation and maintenance of the Town communication equipment. The Land is located in the northwest quarter of Section 17, Township 12 South, Range 12 East, Gila & Salt River Meridian, Town of Marana, County of Pima, State of Arizona, at the top of Beacon Hill, and more particularly identified as Pima County Assessor Tax Parcel No. 226-03-033B. 2. Lease. Welter hereby leases the Premises to the Town for a ten year period of January 1, 2005 through December 31, 2014. 3. Effective Date. This Agreement shall be effective on the date it is fully executed by the Parties (the "Effective Date"). 4. Settlement and Release. Welter hereby releases all claims of whatever nature for the Town's past use of the Land and/or the Premises through December 31, 2004, effective upon the Town's single lump sum payment of $40,000, which shall be paid within fifteen business days following the Effective Date. 5. Information. Upon Town's request, Welter agrees to provide promptly to Town copies of all plans, specifications, surveys and maps in Welter's possession relating to the Land, the Tower, and the elevation of all antennas on the Tower and the frequencies upon which each operates. 6. Rent. Within fifteen business days following the Effective Date and on the first day of each month thereafter, Town shall pay to Welter as rent Eight Hundred and no/100 Dollars ($800.00) per month, adjusted as follows (all of which together constitutes "Rent"): a. Annual adjustment. Each January 1 beginning on January 1, 2006, the previous year's rent (excluding the additional amount set forth in paragraph 6(b) below) shall be adjusted upward by 3%. As so adjusted, this shall be the amount paid as rent (not including the additional amount set forth in paragraph 6(b) below) for that calendar year. b. Adjustments for tax and other costs. The Town shall pay any incremental increase in taxes or other costs owed by the Welters relating to the Land and resulting from the Town's rental or use of the Land, including without limitation any property, rental, sales, use, or other taxes levied by any governmental entity, or the Town's proportionate share of any costs validly imposed on the Land by a third party including, by way of example, any proportionate costs of access to the Land. 7. W-9. Welter shall provide Town an accurate and executed W-9 Form. 8. Use. While this Agreement is effective, the Town may use the Premises for any lawful activity in connection with the provision of communications services necessary for the Town's municipal and governmental operations. The Town is not permitted to use the Premises to provide third-party communications services. {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MARANA/WELTER LEASE & SETTLEMENT AGREEMENT PAGE 2 9. Cooperation. Welter shall cooperate with Town in making, at Town's expense, application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Town's use of the Premises in a manner consistent with paragraph 8 above. 10. Town Facilities. On the Premises, Town has the right to construct, erect, maintain, test, replace, remove, operate and upgrade Town's communications facilities, including without limitation utility lines, transmission lines, an air-conditioned equipment shelter (the Building), electronic equipment, transmitting and receiving antennas, a standby power generator, and supporting equipment and structures for all of the foregoing (all of which together are referred to as the "Town Facilities"). Town has the right to do all work necessary to prepare, maintain and alter the Premises for Town's communications operations and to install transmission lines connecting the antennas to the transmitters and receivers. All of Town's construction and installation work shall be performed at Town's sole cost and expense and in a good and workmanlike manner. Town shall hold title to the Town Facilities and all of the Town Facilities shall remain Town's personal property and are not fixtures. Town has the right to remove the Town Facilities at its sole expense on or before the expiration or earlier termination of this Agreement, and Town shall repair any damage to the Premises caused by that removal. Upon the expiration or earlier termination of this Agreement, Town shall remove the Town Facilities from the Land. 11. Utilities. Town shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Town shall have the right to draw electricity and other utilities from the existing utilities on the Property or obtain separate utility service from any utility company that will provide service to the Property. Welter agrees to sign such documents or easements as may be required by said utility companies to provide such service to the Premises, including the grant to Town or to the servicing utility company at no cost to the Town, of an easement in, over, across or through the Land as required by such servicing utility company to provide utility services as provided herein. Any easement necessary for such power or other utilities will be at a location acceptable to Welter and the servicing utility company. 12. Access. Town, Town's employees, agents and contractors shall have access to the Premises without notice to Welter 24 hours a day, seven days a week, at no charge. Welter grants to Town, and Town's agents, employees and contractors, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across the Land as necessary to install and maintain the Town Facilities. If vehicular or utility access to the Land is blocked or interrupted, Welter shall cooperate with the Town in any legal action, at Town's expense, to re- establish the access. 13. Interference. a. Town shall operate the Town Facilities in compliance with all Federal Communications Commission ("FCC") requirements and in a manner that will not cause interference to Welter or other lessees or licensees of the Land whose installations predate the installation of the Town Facilities. b. Welter shall not, and shall not permit its lessees or licensees to, install new equipment on or make any alterations to the Premises or the Land that are likely to cause interference {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MARANA/WELTER LEASE & SETTLEMENT AGREEMENT PAGE 3 with the operation of the Town Facilities. If interference occurs, Welter shall use best efforts to eliminate the interference within a reasonable period of time. 14. Taxes. If personal property taxes are assessed, Town shall be responsible for any portion of such taxes directly attributable to the Town Facilities. Welter shall pay all real property taxes, assessments and deferred taxes on the Property. 15. Waiver of Lien. Welter waives any lien rights Welter may have concerning the Town Facilities, all of which are deemed Town's personal property and not fixtures, and Town has the right to remove the same at any time without Welter's consent. 16. Termination. This Agreement may be terminated without further liability on thirty days' prior written notice by either Party upon a default by the other Party of any covenant or term of this Agreement, which default is not cured within sixty days of receipt of written notice of default, except that this Agreement shall not be terminated if the default cannot reasonably be cured within such sixty-day period and the defaulting party has started to cure the default within the sixty day period and diligently pursues the cure to completion; provided that the grace period for any monetary default is ten days from receipt of written notice. 17. Destruction or Condemnation. If the Premises or Town Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, Town may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to Welter no more than forty-five days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. 18. Insurance. Town, at Town's sole cost and expense, shall procure and maintain on the Premises and on the Town Facilities, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Town, its employees and agents arising out of or in connection with Town's use of the Premises, all as provided for in this Agreement. Welter, at Welter's sole cost and expense, shall procure and maintain on the Land, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Welter, its employees and agents arising out of or in connection with Welter's use, occupancy and maintenance of the Land. Each party shall be named as an additional insured on the other's policy. 19. Waiver of Subrogation. Welter and Town release each other and their respective principals, employees, representatives and agents, from any claims for damage to any person or to the Property or the Premises or to the Town Facilities or any other property thereon caused by, or that result from, risks insured against under any insurance policies carried by the parties and in force at the time of any such damage. Welter and Town shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. Neither Welter nor Town shall be liable to the other for any damage caused by fire or any of the risks insured against under any insurance policy required by Paragraph 18 above. {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MARANA/WELTER LEASE ti SETTLEMENT AGREEMENT PAGE 4 20. Liability and Indemnity. Welter and Town shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses") arising from the indemnifying party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party's agents, employees or contractors in or about the Land. The duties described in this paragraph shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement. 21. Assignment and Subletting. Town may not assign, or otherwise transfer, all or any part of its interest in this Agreement or in the Premises without the prior written consent of Welter. Welter may assign this Agreement, which assignment may be evidenced by written notice to Town within a reasonable period of time thereafter, provided that the assignee assumes all of Welter's obligations under this agreement. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the Parties. 22. Binding Effect. This Agreement shall run with the Land and shall be binding upon and inure to the benefit of the Parties, their respective successors, personal representatives, heirs and assigns. 23. Warranty of Title and Quiet Enjoyment. Welter warrants that: (i) Welter owns the Land in fee simple and has rights of access to it and the Land and improvements on it are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date; and (ii) Welter covenants and agrees with Town that Town may peacefully and quietly enjoy the Premises, provided that Town is not in default under this Agreement after notice and expiration of all cure periods. 24. Repairs. Town shall repair any damage to the Premises or the Land caused by the negligence or willful misconduct of Town. Upon expiration or termination of this Agreement, Town shall repair the Premises and the Land to substantially the condition in which it existed on the Effective Date, reasonable wear and tear and loss by casualty or other causes beyond Town's control excepted. 25. Hazardous Material. a. As of the Effective Date of this Agreement: (1) Town hereby represents and warrants that it has not and shall not use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Land in violation of any Environmental Law (as defined below), and (2) Welter hereby represents and warrants that (i) Welter has no knowledge of the presence of any Hazardous Material located in, on, under, upon or affecting the Land in violation of any Environmental Law; (ii) no notice has been received by or on behalf of Welter from, and Welter has no knowledge that notice has been given to any predecessor in interest of the Land, by any governmental entity or any person or entity claiming any violation of or requiring compliance with any Environmental Law for any environmental damage in, on, under, upon or affecting the Land; and (iii) Welter will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Land in violation of any Environmental Law. {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MARANA/WELTER LEASE & SETTLEMENT AGREEMENT PAGE .5 b. Without limiting paragraph 20 above, Welter and Town shall each indemnify, defend and hold the other harmless from and against all Losses arising from (i) any breach of any representation or warranty made in this paragraph25 by such Party; and/or (ii) environmental conditions or noncompliance with any Environmental Law (as defined below) that result, in the case of Town, from operations in or around the Land by Town or Town's agents, employees or contractors, and in the case of Welter, from the ownership or control of, or operations in or around, the Land by Welter or Welter's predecessors-in- interest, and their respective agents, employees, contractors, owners, guests or other parties. The duties described in this paragraph 25 shall apply as of the Effective Date of this Agreement and survive termination of this Agreement. c. "Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any Environmental Law. d. "Environmental Law" means any and all federal, state or local laws, rules, regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities with respect to: (i) human health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the existence, use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of the environment. 26. Miscellaneous. a. This Agreement constitutes the entire agreement and understanding between the Parties, and supersedes all offers, negotiations and other agreements concerning the subject matter of this Agreement. Any amendment to this Agreement must be in writing and executed by both Parties. b. Both Parties represent and warrant that their use of the Land and their personal property located on it is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government authority. c. If any provision of this Agreement is invalid or unenforceable with respect to any Party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MARANA/WELTER LEASE & SETTLEMENT AGREEMENT PAGE 6 d. Any notice or demand required to be given under this Agreement shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Welter: Town: c/o Bill Welter 2341 S Calle Mesa del Oso Tucson, Arizona 85748 Town of Marana 13251 N. Lon Adams Road Marana, AZ 85653 Attn: Anthony Casella Phone: 520-382-2500 With a copy to: Marana Town Attorney 13251 North Lon Adams Road Marana, Arizona 85653-9723 Welter or Town may from time to time designate any other address for this purpose by written notice to the other Party. All notices under this Agreement shall be deemed received upon actual receipt. e. This Agreement shall be governed by the laws of the State of Arizona. f. This Agreement shall be recorded by and at the expense of the Town in the office of the Pima County Recorder. g. If the Land is encumbered by a mortgage or deed of trust, Welter agrees to obtain and deliver to Town an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable form reasonably acceptable to both parties. h. Welter agrees to fully cooperate, including executing necessary documentation, with Town to obtain information and documentation clearing any outstanding title issues that could adversely affect Town's interest in or right to use the Premises created by this Agreement. i. In any case where the approval or consent of one Party is required, requested or otherwise to be given under this Agreement, such Party shall not unreasonably delay or withhold its approval or consent. j. Each of the Parties represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this Agreement. k. The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Agreement. {00000282.DOC / 4} 12/28/2004 10:56 AM TOI4rN OF M~tP~N.~/I~ELTER LEASE & SETTLEMENT.~tGREEMENT PAGE 7 1. This Agreement may be executed in duplicate, each of which shall be deemed an original, and may be executed in counterparts with multiple signature pages being attached together to form a single document. m. This Agreement is subject to the provisions of A.R.S. § 38-511, which provides for cancellation of contracts by government entities in certain instances involving conflicts of interest. n. Nothing in this Agreement shall interfere with the Town's right or ability to comply with all obligations imposed by law on Arizona municipalities. o. Welter shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC. Should Town be cited because the Tower, the Premises or the Land is not in compliance and should Welter fail to cure the conditions of noncompliance, Town may either terminate this Agreement or proceed to cure the conditions of noncompliance at Welter's expense, which amounts may be deducted from the Rent. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date of the last signature below. THE TOWN OF MARANA, an Arizona municipal corporation THE ESTATE OF IRENE WELTER, DECEASED, BY AND THROUGH HER PERSONAL REPRESENTATIVE, BILL WELTER By: By: Its: Its: Date: Date: ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MAR~N/L/WELTER LEASE & SETTLEMENT AGREEMENT PAGE 8 STATE OF ARIZONA ) ) SS.: COUNTY OF PIMA ) The foregoing instrument was acknowledged before me this __ day of 2005, by Bill Welter, as Personal Representative of the Estate of Irene Welter, deceased. Seal Notary public {00000282.DOC / 4} 12/28/2004 10:56 AM TOWN OF MARANA/WELTER LEASE & SETTLEMENT AGREEMENT PAGE 9 TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: January 4, 2004 AGENDA ITEM: IX. B. 10 TO: FROM: SUBJECT: MAYOR AND COUNCIL Frank Cassidy, Town Attorney Resolution No. 2005-06: Relating to Employment; approving and authorizing the Mayor to execute the employment agreement with Michael A. Reuwsaat. DISCUSSION A proposed employment agreement with Town Manager Michael A. Reuwsaat is presented for Town Council approval. This proposed contract would retroactively increase the Manager's base salary by the 2% general wage increase that all other employees received effective July 1, 2004, and by a 5% merit adjustment effective on his August 1, 2004 anniversary date. These general wage and merit adjustments follow the guidelines that apply to all Town employees, and the proposed agreement would make future general wage increase and merit adjustments for the Town Manager consistent with those for other employees. The remaining provisions of this agreement are consistent with the benefits that all Town employees enjoy with the exception of the following additional benefits: · In addition to payments for accrued vacation leave upon voluntary or involuntary termi- nation of employment, the agreement pays the Manager for any accrued sick leave. · The agreement continues the Manager's $500 per month vehicle allowance. · The agreement provides additional income equal to the amount of the standard Em- ployee 401 Plan contribution (currently 4%), which the Manager may allocate to his Sec- tion 457 Deferred Compensation account. · The agreement provides for a six-month severance pay. These additional benefits are consistent with the additional benefits provided to other city, town, and county managers throughout Arizona. RECOMMENDATION Staff recommends adoption of Resolution No. 2005-06, approving and authorizing the Mayor to execute the proposed employment agreement with Michael A. Reuwsaat.. SUGGESTED MOTION I move to adopt Resolution No. 2005-06. {00000448. DOC/} FdC/cds 12/29/2004 3: 31 PM MARANA RESOLUTION NO. 2005-06 RELATING TO EMPLOYMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE EMPLOYMENT AGREEMENT WITH MICHAEL A. REUWSAAT. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Mayor is hereby authorized to execute, and the Town's staff is hereby directed and authorized to undertake all other and further tasks required to carry out the terms and obligations of the employment agreement between the Town of Marana and Michael A. Reuwsaat attached to and incorporated by this reference in this resolution as Exhibit A. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of January, 2005. ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney Mayor Bobby Sutton, Jr. {00000451 .DOC/} FJC/cds 12/29/2004 3:50 PM EMPLOYMENT AGREEMENT BETWEEN TOWN OF MARANA AND MICHAEL A. REUWSAAT INTRODUCTION This agreement ("Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and MICHAEL A. REUWSAAT, (the "Employee"). The Town and the Employee are sometimes collectively referred to as the Parties. AGREEMENT IN CONSIDERATION of the mutual promises and covenants contained in this Agreement, the Parties hereby agree as follows: 1. SCOPE. A. This Agreement is intended to set forth the basic terms and conditions under which Employee shall perform the duties of Town Manager for and on behalf of the Town, including the compensation, reimbursement, and fringe benefit provisions relating to that position. 2. TERM. A. This Agreement shall be effective upon its approval by the Town Council and shall continue in full force and effect unless and until it is terminated by either party; provided, however, that the provisions of paragraph 11 below relating to the payment of severance shall automatically terminate on June 5, 2007, unless extended by the then-sitting Town Council. B. If Employee voluntarily resigns as Town Manager, Employee shall give the Town Council sixty days' advance notice unless the parties agree otherwise. 3. SALARY. Town shall pay Employee an annual Base Salary of $112,500.00 payable bi-weekly at the same time that the other Town employees are paid, adjusted as follows: {00000443.DOC/} - 1- FJC/cds 12/29/2004 2:31 PM A. Retroactive adjustments. Because Employee did not receive adjustments that normally would have been made in 2004, the following retroactive adjustments shall be made (and the amounts for past work shall be paid in a lump-sum payment to Employee), raising Employee's current adjusted salary to $120,487.50: i. General wage increase. Effective July 1, 2004, Employee's base salary shall be increased by two percent, consistent with the general wage increase given to all employees of the Town. ii. Merit adjustment. Effective August 1, 2004, Employee's base salary (as adjusted pursuant to paragraph (i) above) shall be increased by five percent, based on merit as determined by the Town Council's current evaluation of Employee's performance. B. Future wage adjustments. Employee's base salary (as adjusted pursuant to paragraph A above) shall be automatically adjusted to reflect any general salary adjustments applicable to all Town employees that are provided or required by the Town's compensation policies, such as the annual market study adjustment. C. Merit adjustment. Consideration for merit increases in Employee's Base Salary shall be given pursuant to a personnel executive session scheduled in a Town Council meeting each July (see, paragraph 9 below). Any merit increase shall be effective on August 1 following the Town Council's performance evaluation unless the Town Council directs otherwise. 4. VACATION, SICK, AND ADMINISTRATIVE LEAVE A. Employee will accrue Vacation Leave at the rate of 1.5 days per month. B. Employee will accrue Sick Leave at the rate of eight hours per month or at the appropriate rate for Town employees of similar service with the Town of Marana, whichever is greater. C. If Employee's employment is voluntarily or involuntarily terminated, Employee shall be compensated for all accrued Vacation Leave and Sick Leave. 5. HEALTH AND LIFE INSURANCE BENEFITS Town shall provide Employee and his dependents with the same group health, medical, dental and disability, and other benefits as are available to all other Town employees and staff. 6. VEHICLE ALLOWANCE Town shall provide a vehicle allowance of $500.00 per month to the Employee, payable in bi-weekly installments. All travel outside Pima County shall be reimbursed at the mileage rate established by Internal Revenue Service. {00000443.DOC/} - 2 - FJC/cds 12/29/2004 2:31 PM 7. RETIREMENT The Town shall provide Employee with the same Town retirement benefits as other Town employees, except that the Town shall pay Employee the amount of Employee's 401 Plan contribution (currently 4%) as additional income over the amount paid pursuant to paragraph 3 above, which Employee may allocate to the Town's Section 457 Deferred Compensation Plan. This additional benefit shall be payable effective the first normal paycheck after the effective date of this Agreement. 8. GENERAL BUSINESS EXPENSES A. Town agrees to budget and pay for Employee dues and subscriptions necessary for full participation in national, regional, state and local associations, and organizations (including, but not limited to, local civic clubs) necessary and desirable for the Employee's continued professional participation, growth and advancement, and for the good of the Town. B. Town shall provide the same tuition reimbursement to Employee as that available generally to Town employees. C. Town agrees to consider, during the annual budgeting process, requests for payment of travel and subsistence expenses of Employee for short courses, institutes, and seminars that are necessary for the Employee's professional development and for the good of the Town. D. Town agrees to consider, during the annual budgeting process, requests for reimbursement of Employee's non-personal but job-related expenses. 9. PERFORMANCE EVALUATION The Town Council shall evaluate the performance of Employee subject to a process, form, criteria, and format as mutually agreed upon. The process at minimum shall include the opportunity for both parties to (1) prepare a written evaluation, (2) meet and discuss the evaluation, and (3) present a written summary of the evaluation results. The final written evaluation should be completed and delivered to the Employee within 30 days of the evaluation meeting. Unless otherwise agreed, the performance evaluation shall occur at a personnel executive session during a Town Council meeting in July of each year. 10. INDEMNIFICATION Town shall defend, save harmless, and indemnify the Employee against any tort, professional liability claim or demand, or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of the Employee's duties as the Town Manager, and will pay the amount of any settlement or judgment arising from it. {00000443.DOC/} - 3 - FJC/cds 12/29/2004 2:31 PM 11. REMOVAL AND SEVERANCE PAY If the Employee is terminated by the Town for any reason other than malfeasance, the Town shall pay the Employee a lump sum payment equal to six months salary and benefits (see, paragraphs 3, 4, 5 and 7 above). 12. OTHER TERMS AND CONDITIONS OF EMPLOYMENT A. Town, in consultation with Employee, shall fix any such other terms and conditions of employment as it may determine from time to time, relating to the performance of the Town Manager, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement. B. Town agrees that the Employee will receive all other benefits not specified in this Agreement afforded to all other Town of Marana employees. C. Town shall bear the full cost of any fidelity or other bonds required of the Employee under law or ordinance. D. Town shall provide for an Annual Physical Examination at a physician of Employee's choice. E. It is recognized that the Employee must devote a great deal of time outside normal office hours to the business of the Town. Employee will be allowed to adjust his office hours as he shall deem appropriate so long as he is available and the management of the Town is not harmed. F. Employee agrees to maintain residence within the corporate limits of the Town of Marana, Arizona. G. Employee agrees to remain in exclusive employ of the Town of Marana. However, this shall not be construed to preclude Employee from occasional teaching, writing, speaking or consulting performed on Employee's time off, even if outside compensation is provided for such services. These activities are expressly allowed provided that they do not adversely affect Employee's performance and do not present a conflict of interest with the Town of Marana. 13. GENERAL PROVISIONS A. This Agreement constitutes the entire Agreement between the Parties. B. This Agreement shall be binding upon and inure to the benefit of the heirs and executors of the Employee. C. This Agreement shall become effective upon adoption and approval by the Town Council of the Town of Marana, Arizona. {00000443.DOC/} - 4 - F. lC/cds 12/29/2004 2:31 PM D. If any provisions, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall not be affected and shall remain in full force and effect. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN OF MARANA, an Arizona municipal corporation MICHAEL A. REUWSAAT By Bobby Sutton, Jr., Mayor Date: Date: ATTEST: Jocelyn Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00000443.DOC/} - 5 - FJC/cds 12/29/2004 2:31 PM