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HomeMy WebLinkAboutResolution 2004-168 payson farms development agreementMARANA 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 ~ayo~l~lq~lJyt Sutton, Jr. ATTEST: [O00003a6. DOC /] 2 FJC/cds 12/27/04 ,,'7; .AN;.q RODRIGUE~"RECORDER RECORDED BY: D K DEPUTY RECORDER 7864 PEl DOC~: 12469 PAG.l.' 3477 NO. OF PAGES: 12 SEQUENCE: 20050101016 01/14/2005 AG 15:25 SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 MAIL $ 11.50 AMOUNT PAID PAYSON FARMS DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA THIS DEVELOPMENT AGREEMENT ("this Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), MARANA DEVELOPMENT CORPORATION, an Arizona corporation formerly called PAYSON FARMS, INC. (the "Owner") and TRI MARANA 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 Councilor 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. 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- 12/28/200410:43 AM :i I:'":~ 'I~:. ,~j~ I:::; !~::l l::;;l '~: :r;::ii I"? I":? (L, 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 0 f greater height 0 n the Property than ani maginary surface extending 0 utward 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 F AA-7 460 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 0 n any portion 0 f t he 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. Roadwav 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- 12/28/200410:43 AM I '~~i{ il ;J~~ ~::.~ ~;l I'i;! ::,:~: Jdl I""~II Ji' ;~3 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 welles) 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- 12/28/200410:43 AM 'I /""~ :~i[ IC':' (::j ~::l f\] :::: l::l~ I"",:W ,{ ~~l 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. Responsibilitv 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. 9 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 bet he 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} PAYSON FARMS DEVELOPMENT AGREEMENT -4- 12/28/200410:43AM I ::~[ l:::i :~~l l::i:l ;,~t d lSI 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 t his Agreement has begun, money damages and remedies a t 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. 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 ~ Jf To ensure reasonable certainty, stability and fairness to the Developer and the Town for a / reasonable period of time, the Developer and the T. own agree that the zoning designations, uses, If.. ./ and densities that now apply to the Property, #::ended by this Agreement, shall remain in " . effect and shall not be changed for a period of 'Ye years after the execution of this Agreement' J without the agreement of the Developer. Nothmg in this paragraph shall in any way restrict the /6 f' 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. 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) PAYSON FARMS DEVELOPMENT AGREEMENT -5- 12/28/200410:43 AM :Ii. ~;;;:: ,., ~:~:~~ t.l !::l ISI "~;~ ~,,,;~ J!:~~ 1:;1 i To the Town: Town of Maran a Town Manager 13251 N. Lon Adams Road Marana, Arizona 85653 To the Developer: David Hum, President MARANA DEVELOPMENT CORPORA nON 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 s hall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter b e void for all purposes 0 n the twentieth anniversary 0 f t he Effective D ate. If t he 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} PAYSON FARMS DEVELOPMENT AGREEMENT -6- 12/28/200410:43AM I. ~;i~ ~:1~ Ll ::::1 ~:::l 'I':~~ ~""l J~:ii ~:l; :~;: 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 0 fits rights under t his Agreement to such entities 0 r subsidiaries shall not b e 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 partnership, 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 Dutv bv 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 FARMS DEVELOPMENT AGREEMENT -7- 12/28/200410:43 AM 1 ~'.,~ :~I! I'~', !~;i ~I.'rW ,~~II n'::;~ II",;. ll~~ ':1; !,J: ::j~ 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 bed eemed to have drafted t his Agreement for purposes 0 f construing any portion ofthis 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 FARMS DEVELOPMENT AGREEMENT -8- 12/28/200410:43AM :1. ~~::oi~l ~::l '~l ll:l :~i; /!:il l::::~ i~:Ii. " 8.22. Force Majeure. I f any P arty 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. 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: THE TOWN OF MARANA, an Arizona municipal corporation By: ~aYor Date: /. t(. tJ~ ATTEST: DEVELOPER: MARANA DEVELOPMENT CORPORATION, an Arizona corporation (the "Owner") By~;f Date: /,;2 -;0--01 TRI MARANA DEVELOPMENT MANAGEMENT AND CONSULTING LLC, an Arizona limited liability company ("Tri Marana") .I, lt~~C. ,,::I, f'" :,~l By: !~;! " 'IH"~ jl;!! l::!~ II ~:i Date: {00000406.DOC / 2}/ 6} PAYSON FARMS DEVELOPMENT AGREEMENT -9- 12/28/200410:43AM .. STA TE OF ARIZONA ) ss County of Pima ) The foregoing instrument was acknowledged before me on })Et!.E ;tI6E/(., 50 , 2004 by David Hum, President of MARANA DEVELOPMENT CORPORATION, an Arizona corporation, on behalf of the corporation. STATE OF ARIZONA ) ssJ,~ s:~r~i~~tA County of Pima ) , My Commssion Expires January 6,2006 ( The foregoing instrument was ::::~'~:;::::~e me on ~ ct.9 , 2004 by Jon Post, Managing Member of TRI MARANA DEVELOPMENT MANAGEMENT AND CONSULTING LLC, an Arizona limited liability company, on behalf of the LLC. ~du~#A/ Notary PublIc My commission expires: . LAURIE-ANN M. HUGHES Notary Public - Arizona Pima County . My Commission Expires Mav 26. 2008 {00000406.DOC / 2}! 6} PAYSON FARMS DEVELOPMENT AGREEMENT -10- 12/28/200410.'43 AM l.. ~'I"l ,~:; d~il ,'::~:! L,,; ~:l f~:1 ::~; ~i J~II~ :(~! l:i - Exhibit A Payson Farms Rezone -- CASE NO. PCZ-04034 2000 .~ '~ ~~~:2' ~ s: "0.;<~,>-~' " ~~~~,.." '~~~~".. . ~" ~ '~. ' o Subject Property ~ ~l I Data Dlsclainer The Town of Maran. provides this mep Information "As la" 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 she" The Town of Ma,ana bacorn.liable to users aftheae 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. I 2000 4000 Feet I ~,"' .' : I!~i iJ~i REQUEST !::~ I~ A request by Lodestar Engineering to rezone approximately 107 acres from f "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 11 E Exhibit B The Southwest quarter of Section 28, Township, 11 South, Range 11 East Gila and Salt River Meridian, Pima County, Arizona, Except the South 825 feet thereof Except the North 25 feet thereof as conveyed to the Town of Maran a in the instrument recorded in Docket 9014 at page 1535. Except the West 30 feet thereof as setforth therein. Except any portion thereof lying within Sanders Road as it presently exists. 1 d'~~~ ,(," ~:~~~ I::! ~:;! 1::;1 ::~i; j!;,li !:l lt~~:} ~.",jl