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HomeMy WebLinkAboutResolution 2005-059 sanders grove development agreement MARANA RESOLUTION NO. 2005-59 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF A DEVELOPMENT AGREEMENT WITH DM MARANA INVESTORS LLC, REGARDING THE SANDERS GROVE DEVELOPMENT PROJECT. WHEREAS, the Sanders Grove Development Agreement addresses the area covered by the Sanders Grove Specific Plan adopted by the Town on March 1, 2005, an 835 acre project located north of Maran a Road between Sanders and Wentz Roads; and WHEREAS, the Mayor and Council find that the terms and conditions of the Sanders Grove Development Agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the development agreement between the Town of Marana and DM Marana Investors LLC, attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Mar ana. BE IT FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the aforementioned agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 17th day of May, 2005. ~ Mayor E Honea ATTEST: ...""""",~ ~'_\.OF~ ~ ~~'";.\,""f""" i~ ~O~ ~ ~ ::: J.;:.I cORPORArë\. ~ == QC)C) I: - _SEAL;:: - ':; \ s ;:: ~~ ,."~ ~ ~:llIm,\\!-t ~ ~ '7'IZ '\9""~ ~I/II.U\\\~ (OOOOO727.DOC /) FJClcds 5/10/05 SANDERS GROVE DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA THIS DEVELOPMENT AGREEMENT ("this Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and DM MARANA LAND INVESTORS, LLC, an Arizona limited liability company (the "Developer"). The Town and the Developer are collectively referred to in this Agreement as the "Parties," and are sometimes individually referred to as the "Party." RECITALS A. The Developer has an interest in approximately 835 acres of land located in the Town limits, as depicted on the map attached as Exhibit "A" and legally described on Exhibit "B" (the "Property"). Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, a Utah corporation sole, owns the Property, and has consented to the recordation of this Agreement on the Property. B. The following are among the development regulations that now apply to the Property: i) The Northwest Marana Area Plan ("NMAP") ii) The Marana Land Development Code (including the written rules, regulations, procedures, and other policies relating to development of land, whether adopted by the Mayor and Councilor by Town Staff) (collectively the "Marana Development Code"), establishing, among other things, the type of land uses, location, density and intensity of such land uses, and community character of the Property, and providing for, among other things, the development of a variety of housing, commercial and recreation/open space opportunities. iii) The Sanders Grove Specific Plan as adopted by the Town on March 1, 2005 (the "Specific Plan"). C. The Developer and the Town desire that the Property be developed in a manner consistent with the development regulations that now apply to the Property, as amplified and supplemented by this Agreement. D. The Town and the Developer acknowledge that the development of the Property pursuant to this Agreement will result in planning and economic benefits to the Town and its residents. E. The Developer has made and by this Agreement will continue to make a substantial commitment of resources for public and private improvements on the Property. F. The Parties understand and acknowledge that this Agreement is a "Development Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. § 9-500.05. G. This Agreement is consistent with the portions of the Town's General Plan applicable to the Property. 1225380v.11 -1- AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Agreement, the Parties hereby agree as follows: Article 1. Development Plans. 1.1. Development Review. The Property shall be developed in a manner consistent with the development regulations that now apply to the Property and this Agreement, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for the Property. The residential design standards contained in the Specific Plan shall govern single-family residential development on the Property and shall control in place of the residential design standards contained in Town Development Code Section 08-06 as currently in effect or as may be amended, superceded, or supplemented in the future. Upon the Developer's compliance with the applicable development review and approval procedures and substantive requirements of the development regulations that now apply to the Property, the Town agrees to issue such permits or approvals for the Property as may be requested by the Developer 1.2. Determination of No Hazard to Air Navigation. For those portions of the Property located within 20,000 feet (3.8 miles) of Marana Northwest Regional Airport, the Developer shall submit an FAA-7460 form to the Federal Aviation Administration and receive a "Determination of No Hazard to Air Navigation" from the Federal Aviation Administration before any construction or alteration of greater height than an imaginary surface extending outward and upward at a 100 to 1 slope for a horizontal distance of 20,000 feet from the nearest point of the nearest runway of the Airport. 1.3. Archaeological/Historic Resources. Development of the Property shall meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code related to Archeological and Historic Resources. 1.4. 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 2. On-Site Infrastructure. 2.1. Water Utilities. Prior to the approval of the first final plat for the Property, the Developer shall prepare a Water Master Plan for the Property and shall enter into a Water Service Agreement with the Marana Municipal Water Company ("MMWC") for potable and non-potable systems which sets forth the various agreements of the Parties relating to, among other things, the interconnection and main extension from the existing water system, and the development, construction, dedication, ownership, and design of the water system, including necessary storage and welles) necessary to serve the Property. The parties intend that MMWC will own the potable and non-potable water systems, that MMWC will provide potable water service to the Property, and that MMWC will provide non-potable water service to the Property (through the non-potable water system constructed by the Developer and dedicated to MMWC). 2.1.1. Transfer of Grandfathered Water Rights. The Developer shall transfer to the Town, as prescribed by the Arizona Department of Water Resources, the Irrigation Grandfathered Rights (IGR) water rights on lands deeded to the Town pursuant to the 1225380v.1l -2- Certificate of Grandfathered Water Rights. On lands not deeded to the Town, extinguishment credits will be transferred to the Town on appropriate Department of Water Resource form, except as may be needed for irrigation and/or water features on the Property. In exchange, the Town shall provide designation of assured water supply and water service to the Property. 2.1.2. Non-potable Water Supply. The Developer intends to contract with MMWC for the non-potable water supply necessary to serve the Property. Such non-potable water will be conveyed by MMWC through the MMWC non-potable transmission system constructed by the Developer pursuant to the Water Service Agreement. 2.1.3. Storage of Non-Potable Water. The Developer shall construct and dedicate to the Town, and thereafter the Town shall operate and maintain, any alternative agricultural storage basins required for development of the Property pursuant to the Specific Plan and located in a public park or open space or that serve as a regional non-potable water storage area. The Developer also may construct alternative agricultural storage basins within private common areas on the Property, but the Developer solely is responsible for the operation and maintenance of such basins. 2.2. Wastewater. The Developer shall construct the necessary on-site sewer collection and transmission system to serve the Property. The sewer system shall be in conformance with, and subject to, the requirements of Pima County Wastewater Management and the Town, and shall be designed and constructed at no cost to the Town. The Developer will construct any necessary off-site trunk sewer lines necessary to serve the Property. 2.3. Roadwav Improvements. The Town currently is updating the circulation element of the NMAP ("Circulation Element"). If the Specific Plan is inconsistent with the updated Circulation Element, then the Town and the Developer agree to pursue an administrative or legislative amendment, as may be necessary, of the Specific Plan so that the Specific Plan is consistent with the updated Circulation Element. After the Town adopts the updated Circulation Element and any Specific Plan amendment required by this Section, and pursuant to the Sanders Grove Preliminary Traffic Analysis dated September 28, 2004 and prepared by Curtis Lueck & Associates, the Developer shall submit a Traffic Impact Analysis ("TlA") for the Property concurrently with submittal of the first block or preliminary plat for the Property. The TlA shall be reviewed by Town staff. The timing and scope of construction of the road improvements will be determined by Town staff based on the findings of the TIA. The Developer shall be responsible only for the construction of the road improvements required by the TlA and this Agreement ("Road Improvements"). 2.3.1. Marana Road. Notwithstanding the timing of construction identified by the TIA, prior to the issuance of the sooth building permit for development on the Property, the Developer shall complete construction of improvements to Marana Road from Interstate 10 on the east to the western-most entrance to the Property. The improvements shall consist of a four-lane cross-section, with a transition to a two-lane cross-section west of the westernmost entrance, including a left-turn lane for eastbound traffic into the westernmost entrance, and any other traffic safety improvements required by the TlA. The actual design will be determined as part of the updated Circulation Element. 2.3.2. Sanders Road. The Developer shall construct improvements to Sanders Road north from Marana Road to the Interstate 10 frontage road. The Developer shall dedicate one-half 1225380v.11 -3- of the right-of-way necessary for Sanders Road. The right-of-way width and roadway design will be established as part of the updated Circulation Element and the TIA. 2.3.3. Kirbv Hughes Road. The Developer shall construct improvements to Kirby Hughes Road from Sanders Road to Wentz Road with a maximum 90-foot right-of-way along it current alignment. Twenty-foot-wide linear landscape buffers will be placed on both sides of Kirby Hughes Road. The roadway will be improved to a two-lane urban cross- section pursuant to Town standards. The design of the roadway and right-of-way may be amended by agreement to be consistent with the updated Circulation Element and the TlA. 2.3.4. Hardin Road. The Developer shall construct improvements to Hardin Road along the northern boundary of the Property within the existing 60-foot right-of-way. The roadway will be improved to a two-lane rural cross-section pursuant to Town standards. 2.3.5. Development Impact Fees. The Developer shall pay the then-applicable development impact fee for transportation improvements, but pursuant to the provisions of Ordinance 2005.09, shall receive credits and/or reimbursements (at the Developer's option) against such fee for the cost to design and construct the improvements to Marana Road and Sanders Road and shall receive credits for the right-of-way necessary for the improvements to Marana Road and Sanders Road. Notwithstanding the foregoing, the cost to design and construct the improvements to Marana Road west of the westernmost entrance to the Property are not eligible for credit or reimbursement against the development impact fee for transportation improvements, as such improvements are not permanent. If Kirby Hughes Road, Hardin Road or any other road is identified by the updated Circulation Element or the TlA as being an arterial roadway, then the Town shall revise the Northwest Marana Roadway Development Impact Fee Report, on which the development impact fee for transportation fee is based, to include such roads as eligible for credits and/or reimbursements, and the Developer shall receive credits and/or reimbursements (at the Developer's option) against the then-applicable development impact fee for transportation improvements, as well as credits for the right-of-way necessary for such improvements. 2.4. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the Property, the Developer shall have completed or shall provide evidence to the Town's satisfaction that Developer has made a diligent effort to complete the process of having the Property annexed into a fire district. 2.5. School Land. The Developer shall contribute a School Improvement Contribution Fee of $1,200 per residential lot, payable to the Marana Unified School District ("District"), and subject to the terms and conditions of a separate agreement by and between the District and the Developer. The separate agreement may document terms and conditions of the dedication of school sites, construction of schools on such sites, and/or the payment of a fee in lieu of site dedication; such separate agreement shall control over this Section 2.5. The separate agreement shall be submitted to the Town concurrently with the submittal of the block plat or first preliminary plat. 2.6. Onsite Private Recreational Facilities. Within each platted block or parcel, private recreational facilities shall be constructed on a site of not less than 185 square feet per residential unit. Site and facility design shall be approved by the Town Parks & Recreation Director and Planning Director. 1225380v.1l -4- 2.7. Public Park/Trail System. The Developer shall dedicate a mInImUm of 6 acres of developable park land per thousand residents at 2.67 people per residential unit to the Town for public park facilities and trail system. The Developer shall arrange for the design and construction of public park and trail improvements in coordination with the Town Parks Department with a value of at least $1,000 per residential unit ("Park Improvements"). The Park Improvements shall include a neighborhood park adjacent to Interstate 10 as shown on the Specific Plan ("Neighborhood Park"). Upon completion and dedication by the Developer of the Park Improvements, the Town will formally accept and maintain the Park Improvements. The Developer shall pay the then-applicable development impact fee for park improvements, but pursuant to the provisions of Ordinance 2005.09, shall receive credits and/or reimbursements (at the Developer's option) against such fee for the cost to design and construct the Neighborhood Park and eligible public trail system elements and credits against such fee for the land dedicated for the Neighborhood Park and eligible public trail system elements. 2.7.1. Phasing of Improvements. The Park Improvements may be constructed in phases as the Property is developed, and in approximate proportion to the amount of the Property developed. Notwithstanding the foregoing, the Park Improvements shall be complete upon completion of development of seventy- five percent of the Property acreage. If the Developer is not in compliance with this Section 2.7.1, then the Town may withhold building permits for development on the Property until the Developer completes construction of the necessary Park Improvements. 2.8. Compliance with State and Federal Laws and Regulations. No approval, permit or authorization of the Town authorizes the Developer to violate any applicable federal or state laws or regulations, or relieves the Developer from the responsibility to ensure compliance with all applicable federal and state laws and regulations, including but not limited to the Endangered Species Act and Clean Water Act. Article 3. Right-of-Way and Financing 3.1. Acquisition and Abandonment of Rights-of-Way. The Developer will use commercially reasonable efforts to acquire from private property owners any and all necessary property rights for the construction of off-site infrastructure improvements required by this Agreement or the Specific Plan. The Town shall not require the Developer to construct or install any off-site infrastructure improvements unless the Developer has acquired the necessary property rights pursuant to this Section 3.1 or, if the Developer is unsuccessful in acquiring such property rights, unless the Town exercises its power of condemnation to acquire the necessary property rights. If the Town exercises its power of condemnation pursuant to this Section, the Developer shall pay all costs of condemnation, including but not limited to the condemnation award to the property owner(s), costs of litigation, and reasonable attorneys' fees. If the Town settles a condemnation lawsuit, the Developer shall pay the settlement costs, provided that such costs, inclusive of the payment for the property, do not exceed 120% of the appraised value for such property without the approval of the Developer. The settlement costs shall be eligible for credits against the development fee for transportation improvements if the property right acquired is necessary for the construction of an arterial roadway. The Town shall, at the sole cost of the Developer, reasonably consider abandonment of any unnecessary public rights-of-way or easements currently located on the Property and not otherwise used or required by other members of the public. 1225380v.11 -5- 3.2. Resµonsibility for Financing Infrastructure Improvements. Upon request of the Developer, the Town staff shall process any request for a Community Facilities District ("CFD") pursuant to AR.S. § 48-701, et seq. and the Town's Guidelines for Establishment of Community Facilities Districts, and the Town Council shall reasonably consider such request for aCFD. Article 4. Cooperation and Alternative Dispute Resolution. 4.1. Appointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the Development, the Town and the Developer each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Developer. The initial representative for the Town (the "Town Representative") shall be the Development Services Administrator, and the initial representative for the Developer shall be Mark Weinberg or a replacement to be selected by the Developer. The representatives shall be available at all reasonable times to discuss and review the performance of the Parties to this Agreement and the development of the Property. 4.2. Timing. The Town acknowledges the necessity for timely review by the Town of all plans and other materials (the "Submitted Materials") submitted by the Developer to the Town under this Agreement 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 timely review of the Submitted Materials whenever possible. 4.3. Default; Remedies. If either Party defaults (the "Defaulting Party") with respect to any of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party") shall be entitled to give written notice in the manner prescribed in Section 7.1 to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected. The Defaulting Party shall then have (i) 20 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) 30 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 30 days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within 30 days and thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this Section, then the Non- Defaulting Party shall be entitled to begin the mediation and arbitration proceedings set forth in Sections 4.4 and 4.5 below. The Parties agree that due to the size, nature and scope of the project to be developed on the Property, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to Developer's development and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific performance will likely be appropriate for the enforcement of this Agreement. This Section shall not limit any other rights, remedies, or causes of action that either party may have at law or in equity. 4.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a 45 day moratorium on arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by Developer and the Town. Ifthe Parties cannot 1225380v.11 -6- agree upon the selection of a mediator within seven days, then within three days thereafter the Town and the Developer shall request the presiding judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at least five years' experience in mediating or arbitrating disputes relating to real estate development. The cost of any such mediation shall be divided equally between the Town and the Developer. The results of the mediation shall be non-binding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 4.5. Arbitration. After mediation (Section 4.4 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, AR.S. § 12-501 et seq., and judgment upon the award rendered may be entered in a court having jurisdiction. Article 5. Protected Development RightsN ested 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 Developer and the Town over the term of this Agreement, the Developer 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 Developer. In addition to the foregoing, upon the Developer's completion of construction of the improvements to Marana Road as set forth in Section 2.3.1, the Developer's right to develop the Property with the densities, intensities, and types of land uses contained in the Specific Plan shall be vested for the term of this Agreement. The Town acknowledges that the Specific Plan permits the development of 2500 residential dwelling units. Article 6. Future Development/Impact Fees If the Town adopts a development, impact, or other infrastructure fee, however denominated, for infrastructure of the type for which Developer has contributed land or made improvements or paid a voluntary fee pursuant to this Agreement, the Developer shall be entitled to a credit and/or reimbursement (at the Developer's option) for such contributions as set forth in AR.S. § 9- 463.05, Ordinance 2005.09, and this Agreement. Article 7. Notices and Filings. 7.1. Manner of Serving. All notices, filings, consents, approvals and other communications provided for in or given in connection with this Agreement shall be validly given, filed, made, transmitted or served if in writing and delivered personally or sent by registered or certified United States mail, postage prepaid, if to (or to such other addresses as any Party may from time to time designate in writing and deliver in a like manner): To the Town: Town of Maran a Town Manager 11555 W. Civic Center Drive Marana, Arizona 85653 1225380v.11 -7- To the Developer: Mark Weinberg c/o Diamond Ventures, Inc. 2200 East River Road, Suite 115 Tucson, Arizona 85741 Article 8. General Terms and Conditions. 8.1. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. The Developer shall be entitled to terminate this Agreement if the Town materially impairs the development entitlements on the Property granted by this Agreement. 8.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right or remedy, and no waiver by the Town or the Developer of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 8.3. Attorneys' Fees. If any Party brings a lawsuit against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any breach or default of this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys' fees by the other Party, in an amount determined by the court and not the jury. 8.4. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 8.5. Headings and Recitals. The descriptive headings of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. The Recitals set forth at the beginning of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here. 8.6. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. 8.7. Further Acts. Each ofthe 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 Developer and its successors. 1225380v.11 -8- 8.8. Future Effect. 8.8.1. Time Essence and Successors. Time is of the essence of this Agreement. All of the provisions of this Agreement shall inure to the benefit of and be binding upon the successors, assigns and legal representative ofthe Parties, except as provided in Section 8.8.2 below. Notwithstanding the foregoing, to the extent permitted by law, the Developer's rights under this Agreement may only be assigned by a written instrument, recorded in the Official Records of Pima County, Arizona, expressly assigning such rights, and no obligation of the Developer under this Agreement shall be binding upon anyone owning any right, title or interest in the Property unless such obligation has been specifically assumed in writing or unless otherwise required by law. In addition, notwithstanding anything in this Agreement to the contrary, the parties agree that the Developer may assign or transfer its obligations to construct the Road Improvements and the Park Improvements under Sections 2.3 and 2.7 of this Agreement subject to such assignee or transferee having the experience, financial strength, past history and technical ability to perform the obligations of Developer under the above referenced Sections under a commercially reasonable standard. Developer shall provide the Town with thirty (30) days written notice of such assignment. Developer agrees that any transfer of the beneficial interest of Developer, except to a wholly owned subsidiary or affiliated corporation of Developer having the same financial status and resources, shall be an assignment under this Section. In the event of a complete assignment by Developer of all rights and obligations of Developer under this Agreement, Developer's liability under this Agreement shall terminate effective upon the assumption of those liabilities by Developer's assIgnee. 8.8.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate without the execution or recordation of any further document or instrument as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the end purchaser or user and thereupon such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement. 8.9. No Partnershiµ and Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between the Developer and the Town. No term or provision of this Agreement is intended to, or shall be for the benefit of any person, firm, organization or corporation not a party to this Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement. 8.10. Other Instruments. Each Party shall, promptly upon the request of the other, have acknowledged and delivered to the other any and all further instruments and assurances reasonably request or appropriate to evidence or give effect to the provisions of this Agreement. 8.11. Imposition of Duty by Law. This Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. 8.12. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in this Agreement. 8.13. Amendments to Agreement. No change or addition shall be made to this Agreement except by a written amendment executed by the Parties. The Parties agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to 1225380v.ll -9- accomplish the goals expressed in the Final Plat and Specific Plan as amended by this Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense of the Party requesting the amendment. 8.14. Names and Plans. The Developer shall be the sole owner of all names, titles, plans, drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at any time developed, formulated or prepared by or at the instance of the Developer in connection with the Property or any plans; provided, however, that in connection with any conveyance of portions of the infrastructure as provided in this Agreement such rights pertaining to the portions of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to the appropriate governmental authority. 8.15. Good Standing; Authority. The Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of Arizona and is authorized to do business in the state of Arizona. The Town represents and warrants to the Developer that it is an Arizona municipal corporation with authority to enter into this Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 8.16. Severability. If any provision of this Agreement is declared void or unenforceable, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. If a law or court order prohibits or excuses the Town from undertaking any contractual commitment to perform any act under this Agreement, this Agreement shall remain in full force and effect, but the provision requiring the act shall be deemed to permit the Town to act at its discretion, and if the Town fails to act, the Developer shall be entitled to terminate this Agreement. 8.17. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of Section 4.5, requiring disputes to be resolved by binding arbitration. 8.18. InteftJretation. This Agreement has been negotiated by the Town and the Developer, and no party shall be deemed to have drafted this Agreement for purposes of construing any portion of this Agreement for or against any party. 8.19. Recordation. The Town shall record this Agreement in its entirety in the office of the Pima County Recorder no later than ten days after it has been executed by the Town and the Developer. 8.20. No Developer Representations. Except as specifically set forth in this Agreement, nothing contained in this Agreement shall be deemed to obligate the Town or the Developer to complete any part or all of the development of the Property. 8.21. Approval. If any Party is required pursuant to this Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. 8.22. Force Maieure. 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 1225380v.11 -10- 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 Section, means any condition or event not reasonably within the control of such party, including without limitation, "acts of God," strikes, lock-outs, or other disturbances of employer/employee relations; acts of public enemies; orders or restraints of any kind of government of the United States or any state thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of people; explosions; and partial or entire failure of utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing Party or Parties, in either case when such course is in the judgment of and unfavorable to a Party shall not constitute failure to use its best efforts to remedy such a condition. 8.23. Conflict of Interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 1225380v.ll -11- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: DEVELOPER: THE TOWN OF MARANA, an Arizona municipal corporation DM MARANA LAND INVESTORS, LLC, an Arizona limited liability company By: Mayor tt ¡I~e--/ Date: 5-IJ-~S- By: Diamond Ventures, Inc. Its: Manager ~G:;' By: Its: ATTEST: Date: S-J'3/0Ç" I ' ...,\\\Uf"!I,.. ~' OF~ ~ ~~~\''''''~~~ ~ £>~cGRPOR.4Të \~~ =~oooi_ - -SEAL- - - :; S ~ ':; ,~.c ~;: ~ ..ð"!iu, »-\\~ ~ ~A ~/ZIU'\9J"{\~ ~IIIIÙn\\~ STATE OF ARIZONA ) ss County of Pima ) The. foregoing instrument was acknowledged before me on 13, 2005 by fJa,¿//J2~¿:¡;~ the Q~ Diamond Ventures, Inc., anager ofDM Marana Land Investors, LLC, an Arizona limited liability company, on behalf of the company. My commission expire.ê;. OC/V1 I (, ! Loo)?' t . liC":' '.",..CEAl /ù-L/ ~ . , ,'r":-""""j ~ ::;¡..iC-AR'ZONA Notary Public -;OUNTY ~~.;!1: 16, 2008 ---~ 1225380v.11 -12- OWNER ACKNOWLEDGMENT AND CONSENT The undersigned owner of the Property acknowledges and agrees to the recordation of this Agreement on the Property. CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LA TTER-DA Y SAINTS, Ntion sole By: J1d41 . Name: Mark B. Gibbons Title: Authorized Agent 1~ STATE OF UTAH ) ) ss County of Salt Lake ) The for~!}ping instrument was acknowledged before me this I~j, day of May, 2005, by ~ ~, the Authorized Agent of CORPORA nON OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, on behalf of the corporation. i~ ftrJ:tIuM~ My co;r9ì~özfres: I I QBPHX\!13689.00002\!927874.! -13- EXHIBIT A Pare.' ,; The Norm hllf of SeCtIon 20 in Township 11 South. Renoe 11 East. QUa and Salt River Mlricßtn. Pime Cof"t\t." AricOn.. Perce' 2: T"1t ,aft of tbe Eaa'I hilt 0' the NorthWMt qu.,., of S.CIIan 111ft Townlhip 11 South, Rlnga 1 1 ..., GIll and 8111"". MetidlIß, Pime Coamy, Arilona.1ying South à.wJw.n of the SGU1hwe.-rly tight .f WIY ."'. of 1he TucIOn-Casa GrInde HlghwlY. saiel tight of w.y being dlMlCribed as fotlowS: hgltlnt,. at . point on the Nont'a 11M of Slid S.rion '7 fro,.,. w~ca Ü\' Nortttwest eom,' be.. SOuth 81. 24l4S- weac . dlSat'IC. of 1831.11 'eet; Tlwnc. soum 60. 29~ 00" eat. cIstInCI of '612. 78 feet 10 . ØOin1 on the east line of .Iid ,.nOR 17 end tM Point of edftO of ..11f rIM. Parcel 3: . TNt _11 of 1he Northealt qua", of Scctioa '17 in Township 11 South, Range 11 EÞt. Gill end Salt FINer Meridian. Pima Coumy. ArJzøn.. ¥"I SoutJI"" West of tha Southwell".' ri8M of wav line of Ibe -ruc:sanoCaA 0" Hapay, ..ad right of way being dt""bed .. foIows: Ieglnn1ng .1 . point on the Norf\ Ii.. of aid Sealon , 7 from whence the Honhwest corner ".r. South.· 2." 4elfW.... cIItance 0"835.17 .et; Thence South 60. 28' 00· East. ~ of 41112. 78 feet 10 . paint on -- Eut IN of ..id S-=tlon 17 end the Point of EndfnI of Slid IiM. ,.,c:et 4= Tha't pan of 1M SoUth half Seeton 17 ¡" Township 11 $OUØ, ...... '1 EMIl BJI. add Sill Rivet Mlridian. PIma County, Arir.onI, I.,;ng So'"" .. W." 0'''' SCMhwestetly Ii,,,, of WIY Hr.. of the Tucson-C... Orne Mfghway. Hid right of WIIt ...... described IS follo\VI~ . Beglnnint It . point an the NOnÞ I" of said See'" 17 flom whence the NOI"tnWÞt eomer be." Sð""'.. 24' 46- W'.. cIS'IlftCe of 1835.17 tlet; Thence South &0.29' 00· ,_. cIi.... 0'4512.78 f... fA). point on the Ea-"" of slid SectiDn 11 ana .. PoIm Of !ndnI of MId fine. P.re" 5: The West harf of".. Northwest qUltt8' of Section , 7 in Township 11 South, Rlntt , 1 East. Gila Ind Slit River Mortell.." Pima ClNtfty. MZMi. EXHIBITB ~D ~ OPEN SPACE _COMMERCIAL _ _ _ _ SPECIFIC PLAN BOUNDARY DMBHUM-LOW DENSITY -INFRASTRUCTURE --- - PARCEL BOUNDARY _IEDIUM DENSITY · · · TRAILS .. PROPOSED SCHOOL SITE =====:ru:=:::-~~::SfÆS ~,d_ ---_I æ....._~_._~~_ ......_"*_.........-_....._10..___-- I .....-....", __~_ =_ ì 'ftJœaILU ..,--.... ! _ J.. 7 I&DR