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HomeMy WebLinkAboutResolution 2004-174 execution of a revised development agreement regarding tortolita vistasMARANA 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and conditions of the Tortolita Vistas Development Agreement authorized by Marana Resolution No. 2004-100 should be repealed and replaced by the Revised Tortolita Vistas Development Agreement which is in the best interests of the Town; and WHEREAS, Marana Resolution 2004-100 was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 Marana Resolution No. 2004-100 approving the Tortolita Vistas Development Agreement is hereby repealed.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.DOC/} 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 Janu~ MayoffBoblSy Sutton, Jr. ATTEST: Qlerk APPRO3?~ A~ T)O.~Ft~RM: ~, ' )13~nk Cas~o~Rom~ { 00000447.DOC/} - 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 MARANA, 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 BUTCHER HARRISON REVOCABLE 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 January 4, 2005. 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.D0C/2] TORTOLITA VISTAS DEVELOPMENT.4 GREEMENT - 1- ] 2/30/2004 9:26 AM FJC 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 xvithin 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 A GREEMENT -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 DEVELOPMENT AGREEMENT -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 Reeulations. 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 &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 sy~stem 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] TORTOLIT,4 VISTAS DEVELOPMENT~4GREEMENT -5- ] 2/30/2004 9:26 AM FJC 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} TORTOLITA VISTAS DEVELOPMENT AGREEMENT - 7- ! 2/30/2004 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- ] 2/30/2004 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} ToRroLIrA VISTAS DEVELOPMENt AGREEMENT -9- 12/30/2004 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, requiting 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; hots; 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} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -1 O- 12/30/2004 9:26 AM F, IC 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, LLP, 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 Attomey 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 TRUST By: BUTCHER HARRISON REVOCABLE Jim Harrison, Trustee Date: [00000408.DOC/2] TOR TOLITA VISTAS D E VELOPMENT AGREEMENT - 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 partnership, on behalf of the partnership. My commission expires: Notary Public State of Arizona ) ) SS County of Pima The foregoing instrument was acknowledged before me on by W. Stuart Dornette, 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} 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} TORTOLIT,4 VIST,4S DEVELOPMENT AGREEMENT -] 2- 12/30/2004 9.'26 AM FJC EXHibIT A Location and Vicinity Map TANGERtl The site is located in Township 11 South, Range 13 East, Section 31. Parcel id's: 219360050, 2'1936006A, 21936006C, 21936006B Legend ~ Project Site DRIVE THE PLANNING ~,,3~,,~ CENTER 3000 Feel I-6 Tortolita Vistas Specific Plan Marana, A/fzona EXHIBIT B Thc Bast half of Sccfio~ 31, Township 11 South, Range 13 ~ Gila and Salt Kiv~ Base aad Mcridia3~, Pima County, Arizona; EXCEPT the North ludf of thc Northeast Quart~ ofth~ North:ast Quarter of said Section 31; EXCEPT the South~ 1040 fact ofsa~d East half'of said Section 31; EXCEPT the North 30 feet lying within Tortolita Road (now.known as Moore ROM), according to Book 2 of Road Maps page 14; records of Pima County, Arizona; EXCEPT the East 30 fc~t lying within Thomydale Road as established by instrumenI recorded in Docket 1064 at page 205, records of Pima County, Arizona; EXCEPT any portion lying within Carnino de Manana Road No. 220, according to Book 2 of Road maps at .page 1 through 4, inclusive, records ofPima C. ounty, Arizona. , F. ANN RODRIGUEZ, RECORDER DOCKET: 12469 .... .' RECORDED BY: D K PAGE: 3585 DEPUTY RECORDER NO. OF PAGES: 17 7864 PEl SEQUENCE: 20050101032 SMARA 01/14/2005 TOWN OF MARANA RES 15: 25 ATTN: TOWN CLERK 13251 N LON ADAMS RD MAIL MARANA AZ 85653 AMOUNT PAID $ 14.00 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 TORTOLIT A 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 'l Agreement attached to and incorporated by this reference in this Resolution as Exhibit A for and ~~ l~ on behalf of the Town of Marana 6 1"1 .::i SECTION 4. The various Town officers and employees are authorized and directed to I\"i l;ll perform all acts necessary or desirable to give effect to this Resolution. ~ .:::1 a ,.. .:::1 ; {00000447.DOC /} FJC/cds 12/29/20043:01 PM '7 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. ATTEST: ~\",n""ll ~~OF~ ~ ~~ ~'\"Irr"',,~ ~O~ ~ ~ ::: ~ I CORPORATE'~ ~ - = QC)Q = = = ;; SEAL:: - ~ ~ ~ ;:: ~ ~ ~ s ~ '!III. "'IIl\\\~ ~ ~~ '12 '\~ ~ ~(!'.Il'\\~ :1 :~~ ,al !::i :3 ~n ...~, .,.... .' ::i: ~"'" c.." I""~ l"' -,. !::~ - { 00000447.DOC /} - 2 - FJC/cds 12/29/20043:00 PM , TORTOLITA VISTAS DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF MARANA, 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 BUTCHER HARRISON REVOCABLE 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 January 4,2005. 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 '. Councilor by Town Staff), establishing, among other things, the type of land uses, location, J ~""i it.: density and intensity of such land uses, and community character of the Property, and ,~1l providing for, among other things, the development of a variety of housing, commercial and f~; ~3 recreation/open space opportunities. (~:J "e F. Pursuant to Arizona Revised Statutes, Section (AR.S. s) 9-500.05, as amended, the Town :3t ~5 and the Owner enter into this Agreement in order to, among other things, (i) facilitate a ".p development of public improvements to and on the Property, and (ii) facilitate development of ,I 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -1- 12/30/2004 9:26AM FJC 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, AR.S. 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 deveiopment 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. 1. The Town has conditionally approved abandonment of public right-of way. within the Property known as Camino de Manana. 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 Manana right of way that is abandoned and revegetated to standards reasonably acceptable to the Town and Unimproved Trails within NUOS shall be j~1l F considered NUOS. Offsite improvements to Moore Road and Thornydale Roads and any water ,.., 9 reservoir site within the Property that is conveyed to a public entity shall be excluded from the f' "~ disturbed area and shall be excluded from both the numerator and the denominator for purposes :3: of calculating both the disturbance area and the total area of the Property. For purposes of this !3 i=' '"' paragraph the term "Unimproved Trails" means a trail that (i) is no wider than two feet when .I"'~' ~~ 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -2- 12/30/20049:26 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 Ov-mer 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 sho\VTI 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 j or protecting the open space identified as Conservation Area under the Specific Plan. Such l"'~ .' .j;;.. access shall be provided to a government agency or a nonprofit corporation established to lA f~1 monitor or maintain open space under a Habitat Conservation Plan approved by the US Fish ~3 and Wildlife Service. ISl 2.2.8. The developer or builder of any portion of the Property shall install construction :=~; ,-. ,:;:l fencing to assure that all NUOS remain in their undisturbed natural state are protected during f:~ ~~j construction. Except as specifically modified by the terms of this Agreement, the Owner shall comply with all Town grading requirements. - {OOOOO408.DOCI2} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -3- 12/30/20049:26 AM FJC 2.2.9. NUOS set aside as required by this Article shall be pern1anently 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 ofNUOS 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 :l. ("Moore Road Improvements"). Prior to the release of assurances for the Property, the Owner i;; shall construct the Moore Road Improvements. The Owner shall solicit at least three itemized a' t=' .' 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 1St the Moore Road Cost. ::~: !S 4.2. Regional Roadway Contribution. Provided that the Owner complies with the ~3 Ie"' requirements of paragraph 4.1 above, the Town shall not collect any transportation impact fees .;:,J. 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -4- 12/30/20049:26 AM FJC S 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-adopte~ 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 sy~tem 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 Manana. Pursuant to A.R.S. S 28-7203, the Town has adopted a resolution to conditionally abandon the portion of Camino de Manana 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 ,. ,j, utilities to the Property and shall maintain such reservation for the benefit of the Property. :~: ~!~l r" Article 5. Cooperation and Alternative Dispute Resolution. ,.::1 /..,~ ;::1 5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate !"i .,:~1I in the progress of the Development, the Town and the Owner each shall designate and appoint a ::~: I:' representative to act as a liaison between the Town and its various departments and the Owner. ..' ,-, ;::J The initial representative for the Town (the "Town Representative") shall be the Development 1 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -5- 12/30/20049:26 AM FJC 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 I~i development. The cost of any such mediation shall be divided equally between the Town and the ,u. :~~:: Owner. The results of the mediation shall be nonbinding on the Parties, and any Party shall be .~jl Ei free to initiate arbitration after the moratorium. !:! 5.5. Arbitration. After mediation (paragraph 5.4 above) any dispute, controversy, claim or lS'l -', cause of action arising out of or relating to this Agreement shall be settled by submission of the :3t ::/ matter by both Parties to binding arbitration in accordance with the rules of the American 1:) ,-" !.-:~ Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. 9 12-501 et seq., and .". judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. - {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -6- 12/30/2004 9:26AM 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 amend~d 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 :1 of a referendum filed for the Prior Specific Plan. Provided that the Specific Plan and this :2: ,Ql Agreement go into effect without a referendum filing or other legal challenge, the Parties affirm (""' ':i 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 !0J .iI~ .,,~. right or remedy, and no waiver by the Town or the Owner of the breach of any covenant of this !3 ~:~ Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or :3 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -7- 12/30/20049:26 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 :I i"~ Owner under this Agreement, Owner's liability under this Agreement shall terminate ,~, iQ! 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 ::1 be withheld. IS! 3 1"'" 7.10.2. Termination Upon Sale to End Purchaser or User. This Agreement shall .:1 :3 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -8- 12/30/2004 9:26AM 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. " ,j ';J Each Party represents and warrants that the individual executing this Agreement on its behalf is ,.. ,ili! ~;..u. authorized and empowered to bind the Party on whose behalf each such individual is signing. b :::1 7.18. Severability. If any provision of this Agreement is declared void or unenforceable, it r ,"I shall be severed from the remainder of this Agreement, which shall otherwise remain in full :3 I::: force and effect. If a law or court order prohibits or excuses the Town from undertaking any I,.,' ~3 I"' 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -9- 12/30/20049:26 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 arbitratjon 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. S 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 1 ~~! .1, Ei ::~ f' :~ ~:! ,"" ,:1 1.:1 - {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -10- 12130/20049:26 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 OVERLAND VISTOSO LIMITED PARTNERSHIP, municipal corporation LLP, an Arizona limited liability partnership By: Ready Two Corporation, Its General Partner By: Bobby Sutton, Jr., Mayor 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 By: Prank Cassidy, Town Attorney W. Stuart Dornette, Trustee by William Hallinan as his attorney in fact Date: NORTHWEST LLC, an Arizona limited liability company, By: Jim Harrison, Authorized Signatory Date: :l t""i: ;lo,. ,~[ f'" JANETTE BUTCHER HARRISON REVOCABLE ...., ."j :;] TRUST l"" ,~! :3: By: 1"" ,:;~ c:, Jim Harrison, Trustee I,...~ '7 Date: - {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -11- 12/30/2004 9:26AM FJC State of Arizona ) ss County of Pima ) The foregoing instrument was acknowledged before me on by Ready Two Corporation, as General Partner of OVERLAND VISTOSO LIMITED PARTNERSHIP, an Arizona limited liability partnership, on behalf of the partnership. My commission expires: Notary Public State of Arizona ) ss County of Pima ) The foregoing instrument was acknowledged before me on by W. Stuart Dornette, 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 ) ss County of Pima ) 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 ) ss County of Pima ) 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 :t '''''; ..~.. State of Arizona ) ss .tli ~~.\i. C County of Pima ::] ) ~~~ The foregoing instrument was acknowledged before me on by Jim ISi '7 Harrison, Trustee of the JANETTE BUTCHER HARRISON REVOCABLE TRUST. i::: "~:r ~:~, ,,,; ~;.:: My commission expires: Notary Public - {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -12- 12/30/2004 9:26AM FJC \ . EXHI1UT A Location and Vicinity Map . w ~ w. 0 w a 0 z 5E ~ a ~ a:: w -J i < 0 c >- Z '- cr: 0 C/) I ."... J: I ~ JA DRIVE CAMINO DEL NORTE ; i ! t "'l ,(. ,~ f3 '::I ,-, The site is located in Township 11 South, Range 13 East, Section 31. ~~THE ~ Parcel Jd's: 219350050, 21936006A, 21936006C, 219360068 .I \ PlANNING.~ . . CeNTER ~ Legend "l.. /' 111JS.~..M.;i4AlI'a. WJ ""..:ill;) 9 ...... .", ":VC1O"'~~~Ct....""t11 9 I>'M::~~ Project Site 0 3000 Felli ".-:-.(0.":.:. 1-6 Tortolfta Vistas Specific Plan Marana, Arizona - , . - t . . . . . . EXHIBIT B f.~ .. The East half of Section 31, Township 11 South, Range 13 East. Gila and Salt River Base and Meridian, Pima County, Arizona; EXCEPT the North half of the Northeast Quarter of the Northeast Quarter of said Section 31; EXCEPT the South -1040 feet of said.East halr of said Section 31; EXCEPT the North 30 feet lying within Tortolita Road (now .known as Moore Road), according to Book 2 of Road Maps page 14; records of Pima County, Arizona; EXCEPT the East 30 feet lying within Thornyrlale Road as established by instrument recorded 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, recQrds of Pima qounty, Arizona. :t 2 ,ai. El l::i .-, lSl ~, ~~~ 6 m .~ IS! - - p , . ~ , . . - . . ''''~'''. / I ~ - - - I I I ~ ~ ~ 5~ ~ ;jj~~ Kl ~ 2 ~~ I ~~~~ ~ I ~gu~ e 14J!:) ~... - I ~~~ ~ - ::s f~ COo !::l 11), ~ ~ ...~ -i, I .r I )... ~W ~ ~ ~ C2 ~~ c:s ~~ L u i~ ~ E-t H 8~ t:Q H :Il - X ttI ~ ... ". ~~ ~~ 8 ( ~- . ~.. .~ ; ~ ~;.~ 1 2 ~ i!lt ~ Co (3 ~;. ::1 ~ IS! f~. ,';' Kl 6 ~ lSl 1 ~ (e ~.vI 0 / ag I - - ~ - - .''''''''' Fr ANN RODRIGUEZ, RECORDER DOCKET: 12469 , . RECORDED BY: D K PAGE: 3602 DEPUTY RECORDER NO. OF PAGES: 15 7864 PEl SEQUENCE: 20050101033 SMARA 01/14/2005 TOWN OF MARANA AG 15:25 ATTN: TOWN CLERK 13251 N LON ADAMS RD MAIL MARANA AZ 85653 AMOUNT PAID $ 13.00 TORTOLITA VISTAS DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF MARANA, 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 BUTCHER HARRISON REVOCABLE 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.l8 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 January 4,2005. 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 Councilor by Town Staft), establishing, among other things, the type of land uses, location, t "~'i density and intensity of such land uses, and community character of the Property, and "I:. ~!::li providing for, among other things, the development of a variety of housing, commercial and r" i:::l recreation/open space opportunities. ~:;:I F. Pursuant to Arizona Revised Statutes, Section (AR.S. s) 9-500.05, as amended, the Town 1~:;1 :~~: and the Owner enter into this Agreement in order to, among other things, (i) facilitate !:1 !;~ development of public improvements to and on the Property, and (ii) facilitate development of ~~~ ,I" 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -1- 12/30/20049:26 AM FJe "'" Original 1 of 2 I'; . 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. 1. 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 Manana. 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 2l, 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 Manana right of way that is abandoned and revegetated to t r,''':~ standards reasonably acceptable to the Town and Unimproved Trails within NUOS shall be ~~::; n!~l considered NUOS. Offsite improvements to Moore Road and Thornydale Roads and any water f::1 reservoir site within the Property that is conveyed to a public entity shall be excluded from the :::1 disturbed area and shall be excluded from both the numerator and the denominator for purposes 1:::1 of calculating both the disturbance area and the total area of the Property. For purposes of this ~"F~ 1,;~)i !::l paragraph the term "Unimproved Trails" means a trail that (i) is no wider than two feet when 1;;1 originally established and expands through usage and erosion to no more than four feet; (ii) is J"I\~ ~~~~ 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -2- 12/30/20049:26 AM FJC I (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 1 ~~;~: access shall be provided to a government agency or a nonprofit corporation established to i!::ll monitor or maintain open space under a Habitat Conservation Plan approved by the US Fish f' :;;i and Wildlife Service. ~::l 2.2.8. The developer or builder of any portion of the Property shall install construction t~;;~ :3~ fencing to assure that all NUOS remain in their undisturbed natural state are protected during !;::i IS! construction. Except as specifically modified by the terms of this Agreement, the Owner ;:::/t shall comply with all Town grading requirements. {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -3- 12/30/2004 9:26AM 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 ofNUOS 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. ArchaeologicallHistoric 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 t 2 shall construct the Moore Road Improvements. The Owner shall solicit at least three itemized j~~ll 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 :::1 the Moore Road Cost. l:;, ;;~ 4.2. Regional Roadway Contribution. Provided that the Owner complies with the f" .,:~ i:~ requirements of paragraph 4.1 above, the Town shall not collect any transportation impact fees I"" ,:::~ 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -4- 12/30/2004 9:26AM FJC 99-463.05 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 Manana. Pursuant to A.R.S. 928-7203, the Town has adopted a resolution to conditionally abandon the portion of Camino de Manana 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. 1 ~~;: Article 5. Cooperation and Alternative Dispute Resolution. ~:::i~ r" :::~ 5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate :::1 in the progress of the Development, the Town and the Owner each shall designate and appoint a 1);1 representative to act as a liaison between the Town and its various departments and the Owner. J'~ ~,,~~ if:1 The initial representative for the Town (the "Town Representative") shall be the Development 1;;1 '"~ r" 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -5- 12/30/2004 9:26AM FJC 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 1 Ji""~ Owner. The results of the mediation shall be nonbinding on the Parties, and any Party shall be ,~: Ji~t free to initiate arbitration after the moratorium. f" :::1 :::1 5.5. Arbitration. After mediation (paragraph 5.4 above) any dispute, controversy, claim or ISI 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 r '"'~ ,.,~ Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. ~ 12-501 et seq., and ISf l"""~i I judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -6- 12/30/20049:26 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 1 Agreement go into effect without a referendum filing or other legal challenge, the Parties affirm ~'''!, 'il~: i!j~ that the Prior Specific Plan and Prior Development Agreement are of no further force and effect. 1:3 l:~ 7.4. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that ,,,,,J right or remedy, and no waiver by the Town or the Owner of the breach of any covenant of this l!~l :;1it Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or ,'''"P, l::::~ any other covenant or condition of this Agreement. iI" ",I l3 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 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -7- 12/30/20049:26 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 1 Owner under this Agreement, Owner's liability under this Agreement shall terminate ef>'!. "~: effective upon the assumption of those liabilities by Owner's assignee, provided that the J!:~, Town has approved the assignment to such assignee, which approval shall not unreasonably ~:::I c:" be withheld. ,,,,,l 7.10.2. Termination Upon Sale to End Purchaser or User. This Agreement shall 1:;;1 ::;~~ terminate without the execution or recordation of any further document or instrument as to !::i l~;l any lot which has been finally subdivided and individually (and not in "bulk") leased (for a ~~l period of longer than one year) or sold to the end purchaser or user and thereupon such lot {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -8- 12/30/2004 9:26AM 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.l7. 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. 1 Each Party represents and warrants that the individual executing this Agreement on its behalf is ~"% ." ,;1;;,,, ~!:1l authorized and empowered to bind the Party on whose behalf each such individual is signing. ~:j 1::1 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 1~~lij ~:;!jt 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. {OOOOO408.DOCI2} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -9- 12/30/20049:26 AM FJe 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 ofInterest. This Agreement is subject to A.R.S. S 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 1 Ii""~ li~~', l~l l~i C~, .,,,,; l~:j ," :;~; f~i :1, 1 {OOOOO408.DOCI2} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -10- 12/30/20049:26 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 OVERLAND VISTOSO LIMITED PARTNERSHIP, municipal corporation LLP, an Arizona limited liability partnership BY.~ By~/ ~oo~"~/ ~___._H.__.._~ _ Ready -Two Corporation, Its General Partner . Bobby tton, r., Mayor Date: ) d. - -:::lD -D 4- Date: JONAH CARSON MEHL 2003 GST TRUST ATTEST: By:~4 W. Stuart Dornette, Trustee by William Hallinan as his attorney in fact Date: lcJ. - 3 I,) .- c If By: U W. Stuart ornette, Trustee y 1 liam Hallinan as his attorney in fact Date: J:L -3D - cY NORTHWEST LLC, an Arizona limited liability company, By: _~~:' - jiIn Harrison, Authorized Signatory Date: IS) - ~ - CA-' I. ~"':~ ,.I~:~ JANETTE BUTCHER HARRISON REVOCABLE ,!::II r TRUST ~::~ - '....... ~~ -. -j'"~ IL~j~ By: ..... ~]; Jim Harrison, Trustee f'~' :1 Date: 1~-30~a+ 2~ {OOOOO408.DOCI2} TORTOLlTA VISTAS DEVELOPMENT AGREEMENT -11- 12/30/2004 9:26AM FJC State of Arizona ) ss County of Pima ) The foregoing instrument was acknowledged before me on Ie:;) ~ ~y 04- by Ready Two Corporation, as General Partner of OVERLAND VISTOSO LIMITED PARTNERSHIP, an Arizona limited liability partnership, on behalf of the partnership. My commission expir State of Arizona ) ss County of Pima ) The foregoing instrument was acknowledged before me on I J,.. - :3 0 ~ 0 cf by W. Stuart Dornette, as Trustee of the JONAH CARSON MEHL 2003 GST TRUST by William Hallinan as his attorney in fact. ~~ My commission expires: ;f I. 'f~.i~[nEF. q - 2 1- 6 (p i 1\~,ci;:VJ f)i.i[ji'.(,. ",' l""~ (.;) '~-,\..'..lflly State of Arizona ) ss . ' " ~ P f- > ~ >'l.l''-; , County of Pima ) "~.!C"","t;;,.~f"\'" !f'"~'ll''')~~'~;jy'-'.*'''.;~''''''~'''~'\'~';;'-~'OO' ~r" The foregoing instrument was acknowledged before me on /:Z-30 .-0 V by W. Stuart Dornette, as Trustee of the WESLEY PAUL MEHL 2003 GST TRUST by William Hallinan as his attorney in fact. _""-,..&.....~...:i.. My commission expires: i ,:.~:5:~,~, lr:~NETIEA . '.' <-- /---- q :2-1 () lP ", ,~'Je'; \ii, I~Gta~y I-"bl!(; .. IllJr.a _ _ ," ;~,'~""'''~ ',,' ~; \j'~2~ . . "'!(J;.l CQU ),'.' ," / , .tW' 'i ';q'lc'" "Hr.!:)1 2006 'f"'/ ". < """, ,. . State of Arizona ) ss """"'""''''-'~'''''''~''''-'~ .. County of Pima ) The foregoing instrument was acknowle~g~gbeforeFqe on /::).- ::t~- OLf by Jim Harrison, Authorize~;~!f?~~o'~J'f~~~tt~ n Arizona limited liability company. \ I<r" ~\ c; i-\ i ,.( c_ ,:. Y M. ONA ~ I "'\ '.." ,.' . ' \C.AR1Z My commission' '~:',W'i,i puB\.. UNTY - r:'. CO M om_cn..-:.'~xpA\.J_~..:..13, 2001 :i State of Arizona '~1"~ I"~'~ ,~, li:jt County of Pima ) ss ~::;; q The foregoing instrument was acknowledged before me on 1~-~-o4 by Jim m Harrison, Trustee oif ~R(f"I~~TTEBtJ.::E(;;~~tI~ms6N" RpVOCABLE TRUST. :j; r' I /7.:7 ~\ r '- ,," y tv1 WELCH ' .::,'~ " .\ ,'"),: ~'.. ,_ t. I. t My commission ex ,;;' NOT j', ~,:-\ PUBliC-ARIZONA ::~ 3) p I, A. COUNTY ._---~ L\ug, 13,2007 {00000408.DOC 12} TORTOLITA VISTAS DEVELOPMENT AGREEMENT -12- 12/30/2004 9:26AM FJC . . . . . . . . B.XHlIu'it A location and VlQnity Map . -- m ~. w c 0 z ~ IE: , i i .-. 0 ~ JADR I CAMINO 0 NORTE I. J'.'~ ,~:. : lat i E~ I !=l II" ..:J! lba sJt81810cated In TO'M1IhIp 11 South, Range 13 Eat. Seeton 31. ~lilH. ~ P-=elId's: 219380060, 2193E1lJ08.6.... 21936OO6C. 2193800eB /"" PLANNINC 'i CENTER ;(i Legend ...... ./ .....~......~... P'III - . "I"beII&'lI.~"""~""", i : III Project Site 0 3lOO ... ; 1-6 Torto/ita Vistas Specmc Plan USlI"AI'JA. Anzana . . I. . .. 1 . . . . . EXHIBIT B , .4 '. . .' The Best half ofScdiOD 31, Township J1 South, RaIl. 13 Bast, 6218 8Il<I Salt River Base and Meridian, Pima County, ArizoIIa; EXCEPT the North halt of the Nmtbeast Quarter of the N011heast Quarter of said Section 31: EXCEPT the SODCb.} 040 feet of aid East bait of said Section 31; , BXCBPT the North 30 teet lyiDg witbin TortoJita Road (now known 88 Moon: Road), according to Book 2 of Road Maps p8F 14, JeCOl'ds of Pima Conn11~ Arizona; EXCEPT ~ East 30 feet lyi>>a within ThomydaJe Road as established by instrument recorded in Docket 1 ()64 at pap 2OS, records of Pima CouIrly, Arizomi; EXCEPT saypoJ'ticm lybtg within c.mm de Mamma Road No- 220, acccmIiDa to Book 2 of Road maps at PBF 1 tbruuJb 4, inclusive. P!lCOtds of Pima Qnmty, Ari2:oDa. :~ ~~~ ,!:~ !"" ::1 ~;! 11:1 ,.1> ~':'~~ ~"", f.:; :t '"'" . 't'~ .. . , . ~ . . , , . . I / t - - - I / I ~ ~ ~ ~~ ~ ;jl~~ ~ ~ ~~?b~ J ~;j~g ~ OCt::f.3 e ~o ~.... - I ~C)~ ~ - ::5 ,~ ll;)o ~ lIj. ~ ~ "f-~ ~, I .: I!.' I )... ~ COIk;- ~ ce ~ c::. ~~ ~~ L u ~~ ~ 8 H 8~ !:Q H ::r:: - x < !:::I . ~ ~~ ~. ~;.~ 1 ~ ~"'~ .t.. l l~ ~ eo ff:i ~:~ ~;. fi ~ ,,~ .-, .S Kj b ~ :l ,- 1::1 ~ f.g:c oc:t / 8~ I - ~ - - -