HomeMy WebLinkAboutResolution 98-038 possible creation of a CFD with best associatesMARANA RESOLUTION NO. 98-38
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA
APPROVING AND AUTHORIZING THE TOWN TO ENTER INTO A DEVELOPMENT
AGREEMENT BY AND BETWEEN THE TOWN OF MARANA AND BEST ASSOCIATES II,
LLC PROVIDING FOR THE CONDITIONS, TERMS, RESTRICTIONS AND REQUIREMENTS
FOR THE CONSTRUCTION AND INSTALLATION OF PUBLIC INFRASTRUCTURE AND
FOR THE POSSIBLE CREATION OF A COMMUNITY FACILITIES DISTRICT.
WHEREAS, Best Associates is the owner of approximately 652 acres located in section 18
and within the northwest 1/4 of section l 7, township 12 south, range 12 east, bordered by Lambert
Lane to the north and Twin Peaks Road to the south; and
WHEREAS, the Owner intends to develop the property and construct public infrastructure
and the Town approved the rezoning of the property by the adoption of Ordinance No. 97.04; and
WHEREAS, a Development Agreement between the Town and the Developer has been
drafted for the purpose of providing for, among other things, conditions, terms, restrictions and
requirements for the construction and installation of public infrastructure and the possible creation
ora community facilities district; and
WHEREAS, it has been determined by the Mayor and Council of the Town of Marana, that
the Development Agreement between the Town of Marana and Best Associates II, LLC, should be
approved.
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 Best
Associates II, LLC, is approved mad the Mayor is authorized to execute the Development Agreement
on behalf of the Town.
Marana, Arizona Resolution No. 98-38 Page 1 of 2
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
21st day of April, 1998.
Mayor ORA MAE lttARN~
~lose
~T~O)FORM:
"'""-'"'~D~niel J. Hochuli Town Attorney
Marana, Arizona Resolution No. 98-38 Page 2 of 2
F. ANN RODRIGu~~~ RECORDER
RECORDED BY: MEK
DEPUTY RECORDER
4291 ROOE
SMARA
TOWN OF MARAN A
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
Development Agreement
Town of Marana, Arizona
Best LLC II
MaranaITwin Peaks Development Agreement
10798
663
DOCKET: 10798
PAGE: 663
NO. OF PAGES: 62
SEQUENCE: 19980750265
05/18/98
AG 14:12
MAIL
AMOUNT PAID
36.50
$
"'"
TABLE OF CONTENTS
1 Development Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
1.1 Development in Accordance with the MDC and Zoning. ............ 2
1.2 Vested Rights. ............................................ 2
1 .3 Zoning Conditions. ......................................... 2
1 .4 Amendments to Plans and Agreement. . . . . . . . . . . . . . . . . . . . . . . .. 2
1.5 Golf Course. ............................................. 3
2 Infrastructure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
2.1 Infrastructure Plan. ........................................ 3
2.2 Infrastructure Plan Amendment. .............................. 4
2.3 Water Improvements. ....................................... 4
3 Transportation Upgrades. ........................................ 5
3.1 $700.000 Initial Developer Constructed Upgrades. ................ 5
3.2 Balance of the $2,509,000.00 Obligation. ....................... 6
3.3 Draw Down Fund. ......................................... 6
3.4 Offset in Event Of Impact Fee or Additional Sales Tax. ............. 6
4 Financing Infrastructure Improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
4.1 Formation of CFD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
4.2 CFD Implementation of this Agreement. . . . . . . . . . . . . . . . . . . . . . . . .. 8
4.3 Organization and Operation of the CFD. . . . . . . . . . . . . . . . . . . . . . . . .. 8
4.4 Construction and Acquisition of Infrastructure. .................... 9
4.5 Developer's Right to Construct Infrastructure. .. . . . . . . . . . . . . . . .. 11
4.6 CFD's Construction of Infrastructure. .......................... 12
4.7 Bond Issuance and Sale. ................................... 13
4.8 Bond Restrictions. ........................................ 14
4.9 CFD Acquisition of Infrastructure. ........ . . . . . . . . . . . . . . . . . . . .. 16
4.10 Adding Property to CFD. ................................... 17
4.11 Other Districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
5 Public Ownership and Maintenance of Certain Infrastructure. . . . . . . . . . . . .. 18
5.1 Dedications of Infrastructure. ................................ 18
5.2 Contributions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
6 CFD Budgets. ................................................. 18
6.1 Administrative Expenses. .................................. 19
7 Cooperation and Alternative Dispute Resolution. ...................... 19
7.1 Appointment of Representatives. ............................ 19
7.2 Timing. ................................................ 19
7.3 Outside Consultants. ...................................... 19
7.4 Default. ................................................ 20
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8 Notices and Filings. ............................................. 20
8.1 Manner of Serving. ....................................... 20
9 General Terms & Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
9.1 Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
9.2 Waiver. ................................................ 21
9.3 Tax. ................................................... 21
9.4 Attorneys' Fees. ......................................... 21
9.5 Counterparts. ........................................... 21
9.6 Headings and Recitals. .................................... 21
9.7 Exhibits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
9.8 Further Acts. ............................................ 22
9.9 Future Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
9.10 No Partnership and Third Parties. ............................ 23
9.11 Other Instruments. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
9.12 Conflict of Interest. ....................................... 23
9.13 Imposition of Duty By Law. ................................. 23
9.14 Entire Agreement. ........................................ 23
9.15 Amendment. ............................................ 23
9.16 Names and Plans. ........................................ 23
9.17 Good Standing; Authority. .................................. 24
9.18 Severability. ............................................. 24
9.19 Governing Law/Arbitration. ................................. 24
9.20 Recordation. ............................................ 24
9.21 No Developer Representations. ............................. 24
9.22 Default and Remedies. .................................... 25
9.23 Approval. ............................................... 25
9.24 Force Majeure. .......................................... 25
9.25 Definitions. ............................................. 25
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT [hereinafter "Agreement"] is made by and
between the TOWN OF MARANA, an Arizona municipal corporation [hereinafter "Town"]
and BEST ASSOCIATES II, LLC, an Arizona limited liability company [hereinafter
"Developer"] .
RECITALS
A. The Developer is the owner of approximately 652 acres of real property within the
corporate limits of the Town, as depicted on the map attached hereto as Exhibit "A 1"
and legally described on Exhibit "A2" [hereinafter collectively referred to as the
"Property"].
B. The Sahuaro Springs Development Project, also known as the Twin Peaks Project
(the "Development") is a residential and mixed use development planned for the
Property.
C. This Development Agreement shall be subject to (i) the Marana Development Code
(including rules, regulations, procedures and other policies relating to development,
whether adopted by the Mayor and Councilor by staff) [hereinafter "MDC"], (ii)
conditions of the Developer's zoning as detailed in Marana Ordinance No. 97.04
passed and adopted February 18, 1997, and attached as Exhibit B [hereinafter
"Zoning Ordinance"], and (iii) the Twin Peaks Site Analysis and the Twin Peaks
Master Plan Project Summary dated February 10, 1997 [hereinafter "Site Analysis"],
collectively establishing, among otherthings, 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,
recreation/open space, and industrial and commercial/business opportunities.
D. The Developer and the Town desire that the Property shall be developed in
accordance with the MDC, the Zoning Ordinance, and the Site Analysis. The
parties hereto acknowledge that this Agreement is intended to be consistent with
the foregoing, and operates to the benefit of the Town, the Developer, and the
public.
E. 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 9-500.05, in order to facilitate the development of the Property by providing for,
among other things, conditions, terms, restrictions and requirements for the
construction and installation of public infrastructure as more particularly described
in the Infrastructure Plan, and the possible financing of such public infrastructure
improvements; the phasing over time of construction or development on the
Property; and other matters related to the development of the Property.
F. 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 by, among other things, (i) requiring development of the
Property consistent with the approved Site Analysis, the MDC and the zoning
conditions (ii) increasing revenues to the Town based on businesses and
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improvements to be constructed within the Property, and (iii) creating jobs through
new businesses to be located within the Property.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and agreements set forth herein, the parties hereto state, confirm and agree as
follows:
AGREEMENT
1 Development Plans.
1.1 Development in Accordance with the MDC and Zoning. Priorto the approval
and execution of this Agreement and upon the Town's review and due
consideration, the Town has approved Marana Ordinance No. 97.04 as the
zoning for the development of the Property. The Property shall be
developed in accordance with the Zoning Ordinance, which Ordinance (in
conjunction with the MDC) sets forth the basic land uses, densities and
intensities of such land uses as presently authorized for the Property and
development regulations related thereto. The approval by the Town of the
Zoning Ordinance and this Agreement authorizes the Developer to: (i)
implement and proceed with the land uses, densities and intensities, as set
forth within the Zoning Ordinance, and subject to the development
regulations contained therein, notwithstanding any subsequent changes of
the Town's zoning code or other land use ordinances currently applicable to
the Property, and (ii) proceed through the legally required development
process and request the customary approvals necessary to permit the
Developer to implement the Zoning Ordinance. Upon compliance by the
Developer with the development review and approval process as set forth in
the MDC and other Town ordinances, rules, regulations and state laws, the
Town agrees to approve or issue such permits, plans, specifications, and/or
plats of or for the Property as may be requested by the Developer and which
are consistent with the Site Analysis, the Zoning Ordinance, and the MDC.
1.2 Vested Rights. Developer shall be deemed to have a vested right to develop
the Property in accordance with the Zoning Ordinance, the Town Zoning
Code, and other rules and regulations which would otherwise apply to
regulate the development of the Property.
1 .3 Zoning Conditions. The Developer agrees to fulfill all conditions as outlined
in the Zoning Ordinance.
1.4 Amendments to Plans and Agreement. The Town and the Developer agree
to cooperate and in good faith pursue any amendments to this Agreement
that are reasonably necessary to accomplish the goals expressed in the
MDC, Site Analysis, and Zoning Ordinance and to facilitate the development
of the Property in light of any changes in development requirements. All
amendments to this Agreement shall be in writing and, if approved, must be
signed by all appropriate parties. Any amendment to this Agreement shall
be approved and recorded pursuant to Section 9.15 hereof.
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1.5 Golf Course. The Developer shall cause to be constructed a regulation,
U.S.G.A. eighteen (18) hole golf course and driving range upon the Property
within two (2) years of the date of this Agreement. For good cause shown
and upon written notice, the Developer may extend this obligation an
additional two years.
2 Infrastructure.
2.1 Infrastructure Plan. Attached hereto as Exhibit "c" is a proposed
infrastructure plan for the Property [hereinafter "Infrastructure Plan"]. Except
as otherwise provided in this Agreement, the Infrastructure Plan shall
authorize the Developer, so long as the Developer proceeds with the
development of the Property, to implement and phase the infrastructure
improvements to the Property in conformance with the Infrastructure Plan.
2.1.1 Subject to the terms of this Agreement, the Developer at its sole cost
and expense, shall cause the items of public infrastructure described
in Exhibit C [hereinafter such items are referred to collectively as the
"Infrastructure"] to be constructed as approved by the Town with
respect to the development of all or any portion of the Property. The
infrastructure shall be constructed in accordance with the
requirements for construction of infrastructure similar to the proposed
construction. Although the Infrastructure set forth in the Infrastructure
Plan shall be constructed by the Developer, the Developer may chose
the method of financing, which mayor may not include the use of a
CFD.
2.1.2 The construction of the Infrastructure may be segregated into phases
as approved by the Town; such phases shall constitute distinct
projects [the "Projects" or each as a "Project"]. To be eligible for
financing provided by a community facilities district [hereafter "CFD"]
or other special district financing, each Project shall be bid in one or
more parts pursuant to the provisions of Title 34, Chapter 2, Article 1 ,
Arizona Revised Statutes, as amended, and in accordance with the
policies of the Town, and if applicable the CFD, for such purposes
[hereinafter "Bid Requirements"], and contracts shall be entered into
with the lowest responsible bidder resulting therefrom [hereinafter
referred to collectively as the "Contracts" and individually as a
"Contract"]. The Form of Notice Inviting Bids in Exhibit D hereto shall
be used in substantially such form for such purpose and the use of
such form prior to the execution and delivery of this Agreement is
hereby ratified in all respects. Compliance with the bid requirements
shall be evidenced by the certification of the engineers of the
Developer and the CFD [hereinafter "Engineers"] with respect thereto
in the form of Exhibit E [hereinafter "Certificate of Engineers"]. Each
contract shall provide that the respective contractors shall not have
recourse, directly or indirectly, to the Town or the CFD for the
payment of any costs under such contract or any liability, claim or
expense arising therefrom and that the Developer shall have sole
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liability for payment under such contract of all such amounts.
Notwithstanding the Developer's compliance with the provisions of
this section, neither the Town nor the CFD are obligated to provide
financing. Each contract for construction of the Projects shall be
approved by the Town or the CFD in order for the costs of such
Project to be eligible for financing by a CFD or other financing district.
2.1.3 The Developer shall provide for inspection of work performed under
any contract by the Engineers.
2.1.4 Any change order to any contract shall be subject to the approval by
the Engineers (which approval shall not be unreasonably withheld or
delayed) and shall be certified to in the Certificate of Engineers;
provided, however, that any change order increasing the amount of
a contact by more than twenty thousand dollars ($20,000.00) or
modifying significantly the scope of the work otherwise shall be
approved by the CFD Engineer and the CFD Board.
2.1.5 As between the Developer and the CFD, the Developer shall bear all
risks, liabilities, obligations and responsibilities under each contract
and all risk of loss of or damage to any Project (or any part thereof)
occurring prior to the time of acquisition of such Project specified in
Section 4.4 (relating to acquisition of projects).
2.2 Infrastructure Plan Amendment. The Town and the Developer acknowledge
that amendments to the Infrastructure Plan may be necessary from time to
time to reflect changes in market conditions, development financing and/or
to meet the new requirements of one or more of the potential users or
builders of any part of the Property. In addition, the Town and the Developer
acknowledge that the Infrastructure Plan may be amended as more detailed
information becomes available. If and when the parties find that changes or
adjustments are necessary or appropriate, they shall effectuate such
changes or adjustments pursuant to the procedure set forth in Section 9.15.
2.3 Water Improvements. The Developer will design and construct a water
pumping and delivery system to the greater of the design standards of (i) the
City of Tucson water department, or (ii) the Town of Marana water
department, capable of serving the water needs of all commercial and non-
commercial development, sized to serve the maximum authorized
development of the Property. Upon completion of each portion of the system
and when a rate analysis shows that portion of the water system to be
financially self sustaining, the Developer will dedicate the system to the
Town, without cost to the Town nor additional cost to the Developer, and the
Town shall thereafter operate the system as an integral part of its municipal
water utility. The extent of the water system, its design requirements and its
turnover requirements shall be the subject of a separate, definitive
agreement between the Town and the Developer, to be completed prior to
the approval of the first preliminary plat.
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2.3.1 In the event the Developer (or the contractors) installs, to Town
specifications, automated meters, sensors, and the other necessary
equipment for automatic meter reading, and supports the Town in
obtaining the necessary automatic meter reading equipment from the
supplier, the Town agrees that it shall waive water connection and
installation fees.
2.3.2 The Developer agrees to construct, to specifications and schedule as
agreed between the parties, an interconnection line from the Twin
Peaks Water Project to the Airline-Lambert Water System to ensure
that the Development will have an assured water supply.
3 Transportation Upgrades. The Town and the Developer have identified various
roadway improvements, bridge improvements and Interstate Highway interchange
upgrades for improvement in conjunction with the Development and other existing
and planned developments in the area [hereinafter collectively "Transportation
Upgrades"]. The Transportation Upgrades will aid in the development of the
Development, but the benefits of the Transportation Upgrades are not limited to the
Development. Some, such as improvements to Lambert Lane, Airline Road and
Twin Peaks will improve roadways contiguous to or in the near vicinity of the
Development. Others, such as improvements to the 1-10 Interchange and the
bridge crossing over the Santa Cruz River are more regional in nature. In
compliance with the MDC, the Zoning Ordinance and the Site Analysis, the
Developer agrees to contribute a total of two million five hundred and nine thousand
dollars ($2,509,000.00) toward the Transportation Upgrades contained on Exhibit
F. This Developer's contribution will be made as set forth in Section 3.1 and 3.2.
It is further understood and agreed that these funds shall be segregated from the
general funds of the Town and restricted for use solely on the Transportation
Upgrades; provided, however, the Town may release such funds from this
restriction to the extent that county, state or federal funds have been received and
spent on such roadway improvements; and, provided further, in the event that
county, state or federal funds are received and spent for the improvement of such
roadways, the funds released shall be segregated and restricted for use in the
remaining Transportation Upgrades called for in this Agreement.
3.1 $700.000 Initial Developer Constructed Upgrades. The Developer agrees
to fund and construct certain Transportation Upgrades prior to the issuance
of a Certificate of Occupancy for any building within the Development. The
Transportation Upgrades to be constructed by the Developer pursuant to this
subsection shall be those Transportation Upgrades set forth on Exhibit F and
titled (i) Twin Peaks, (ii) Lambert Lane, and (iii) Airline Road. In the event
that the total cost of the design and construction of these Transportation
Upgrades is less than seven hundred thousand dollars ($700,000.00), the
Developer shall, prior the issuance of any Certificates of Occupancy, forward
the different between the cost of the Transportation Upgrades and seven
hundred thousand dollars ($700,000.00) to the Town, to be used by the
Town forthe construction of other Transportation Upgrades. In the eventthe
total cost of design and construction of these Transportation Upgrades
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exceeds seven hundred thousand dollars ($700,000.00), the Developer shall
pay the total cost, and shall not receive any credit for monies spent in excess
of this amount.
3.2 Balance of the $2.509.000.00 Obligation. From all future sales of homes
located on the Property (up to and including a total of 2,509 residential lots
as approved in the zoning ordinance), the Town shall collect the sum of
$1,000.00 per home less credit for the Developer Constructed Traffic
Improvements set forth in subsection 3.1. Consequently, the Town shall
collect the sum of seven hundred thirty eight and 14/100 ($738.14) per home
when the building permit is issued for each residential unit in the project
[hereinafter referred to as the "Additional Permit Fee"). The Developer
acknowledges and agrees to this condition, and agrees that it shall include
a provision for such payment in its contracts for sale of each parcel of the
Project. The Developer covenants and agrees to cooperate with and assist
the Town in the creation of further documents as may be necessary to make
this provision legally enforceable against its successors in interest.
3.3 Draw Down Fund. The Developer will make available the sum of $50,000.00
to the Town, without interest, such fund to be used as a draw down account
for the improvements contemplated herein, whereby the Town applies funds
when granting permits for the Development. The developer shall maintain
a balance of $10,000.00 in the draw account at all times. The Town shall
refund the unused balance at such time as no further permit applications of
the Developer are pending. This draw account is in addition to any other
draw account that Developer may be required to establish for other
development and construction costs.
3.4 Offset in Event Of Impact Fee or Additional Sales Tax.
3.4.1 Definition of Future Fees. For the purposes of this section, the term
"Future Fee" shall refer to either (i) any development impact fee which
is established after the date of this agreement which covers
residential construction upon the Property, or (ii) any increase in the
sales tax rate covering residential construction activity on the Property
which causes the tax upon residential construction activity to be
greater than the town's generally adopted business privilege tax upon
retail sales (in which case "Future Fee" shall relate to the amount the
construction tax exceeds the retail tax). By way of illustration, if the
retail sales tax rate is two percent (2%) and the construction tax is
three percent (3%), then the Future Fee shall be one percent (1 %).
However if the retail sales tax and construction tax are both increased
to three percent (3%), there is no Future Fee as herein defined.
3.4.2 Reimbursement of Future Fees. In the event the Town establishes
any Future Fee prior to the expiration of this Agreement, the
Developer shall be allowed a credit against the Additional Permit Fees
thereafter paid as set forth herein. At the end of each calendar
quarter, Developer (or its assignee) shall submit to Town a list of each
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home which has been built and sold which was subject to both the
Additional Permit Fee and the Future Fee, along with each address,
permit number, proof that the Additional Permit Fee and Future Fee
were paid, and the amount of each payment. By the end of the next
following calendar quarter, the Town shall reimburse the Developer
(or its assignee) the Additional Permit Fee for each such house, up to
the lesser of (i) the amount of Additional Permit Fee paid, or (ii) the
amount of the Future Fee actually paid.
4 Financing Infrastructure Improvements. Subject to the Town's approval of the
formation of a CFD or Other District (as hereafter defined), which approval may be
given or withheld in its sole and absolute discretion, and pursuant to Sections 4.1
through 4.11 of this Agreement, the Town and the Developer agree that all or part
of the Infrastructure set forth in Exhibit "c" hereto may be acquired or constructed
through the creation of a community facilities district [hereinafter "CFD"], pursuant
to A.R.S. S 48-701 et seq. (the "CFD Act"), a municipal improvement district,
pursuant to A.R.S. S 48-571 et seq., or a combination thereof. A municipal
improvement district shall be referred to as the "Other District." The Developer shall
comply with the Town of Marana, Arizona Policy Guidelines and Application
Procedures for the Establishment of Community Facilities Districts [hereinafter
"Marana CFD Guidelines"] and other similar requirements of the Town and the CFD,
provided however, that in the event of an express conflict between the Marana CFD
Guidelines, any similar requirements of the Town or CFD and this Agreement, this
document will apply.
4.1 Formation of CFD.
4.1.1 Petition and General Plan. Upon filing a CFD Application, a CFD
General Plan, and a petition for the formation of a CFD [hereinafter
"Petition"] executed by all owners of and such persons with an interest
in the real property as deemed necessary by the Town within the
CFD, with the Marana Town Clerk [hereinafter "Town Clerk"], the
Developer shall be entitled to consideration by the Marana Town
Council [hereinafter "Town Council"]of the formation of the CFD. The
CFD General Plan shall be consistent with the Infrastructure Plan.
Within thirty (30) days after staff determination that the application
and other filed documents are complete and proper, the Town Council
shall meet [hereinafter "First Town Meeting"] to consider the formation
of the CFD. The Town Council's consideration of the formation of the
CFD shall be conducted in a reasonable and customary manner.
4.1.2 Formation. At the First Town Meeting, the Town Council will hear and
consider the adoption of a resolution of intention to form the CFD
pursuant to the CFD Act [hereinafter "Formation Resolution"]. The
adoption of the Formation Resolution shall be in the sole and absolute
discretion of the Town Council.
4.1.3 Recording Documents. If the Formation Resolution is adopted, the
Town shall record and file and distribute copies of the Formation
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Resolution, the CFD General Plan, and such other notices, as
required by the CFD Act.
4.1.4 Reimbursement of Expenses. The Developer agrees to pay the Town
its costs associated with the CFD. To the extent permitted by
applicable laws and the Town's Guidelines, the CFD shall reimburse
the Developer out of the Bond Proceeds, as defined below, any
capital costs and expenses paid to the Town or by the Developer in
connection with the formation and operations of the CFD, which may
include the costs of appraisals, feasibility studies and title reports, and
pay the fees of engineers, bond underwriters, and financial advisors.
4.2 CFD Implementation of this Agreement.
4.2.1 Ratification by the CFD. Upon formation, the CFD shall be
considered a party to this Agreement as provided by the CFD Act,
and the Board of Directors of the CFD [hereinafter "CFD Board"] may
administer the implementation of this Agreement as it relates to the
CFD and the property included therein. The CFD Board shall ratify
this Agreement. Such ratification shall constitute an acknowledgment
by the CFD that: (i) the Infrastructure may be financed and
constructed by the CFD as provided in its CFD General Plan; and (ii)
that, subject to the terms of this Agreement, the CFD may reimburse
the Developer, to the extent permitted by law, for the capital costs of
the Infrastructure, or any portion thereof, constructed after the date of
this Agreement but prior to the availability of CFD funds to finance
construction or acquisition of such Infrastructure, as described in
Paragraph 4.9, provided such construction contracts for the
Infrastructure were bid pursuant to the public bidding requirements of
Arizona Revised Statutes Title 34 and approved by the Town or the
CFD.
4.2.2 Consultation with the Developer. The rights of the Developer and
consents or approvals required from the Developer as set forth in
Sections 4.3.4, 4.4.3, 4.9, 4.5, 5 and 9.15 of this Agreement shall also
apply by specific written assignment to any and all assignees of the
Developer of any interest in the Property within the CFD. The
Developer shall designate any assignee, if such assignee is approved
by the Town or the CFD, in a written instrument duly recorded in the
Official Records of Pima County, Arizona. Absent an express written
assignment, all rights and obligations of the Developer shall remain
with the Developer.
4.3 Organization and Operation of the CFD.
4.3.1 Appointment of Boards of Directors. So long as Arizona law permits,
the members of the CFD Board shall be an independent board, and
shall not be made up of the Town Mayor and Council [hereinafter
"CFD Board Members"]. The initial CFD Board Members shall be the
appointed by the Mayor and Council.
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4.3.2 Independent Advisers. The CFD may retain an independent financial
adviser, legal advisor, and such other advisers as may be necessary
to assist the CFD in its operations, including but not limited to
evaluating budgets, feasibility reports and similar matters.
4.3.3 General Operation. The CFD shall maintain its records and conduct
its affairs in accordance with the CFD Act, the laws of the State of
Arizona, and the Marana CFD Guidelines.
4.3.4 Election. The CFD Board may, and if requested by the Developer, the
CFD Board shall, adopt a resolution ordering that an election
[hereinafter "Election"], for the purposes hereafter described, be held
on any election date designated by the CFD. The Election shall be
called forthe electors residing in the CFD, if any, and the landowners,
to vote to authorize the issuance of general obligation bonds of the
CFD, subject to the restrictions set forth herein and the Article 4 of the
Marana CFD Guidelines, in an aggregate principal amount
established by the CFD Board after consultation with the Developer.
In addition the CFD Board may, and if requested by the Developer the
CFD Board shall, adopt a resolution ordering that the Election include
authorization for imposition of a maintenance and operation ad
valorem tax not to exceed thirty cents ($.30) per one hundred dollars
($100.00) of assessed valuation. The CFD may, at the request of the
Developer, adopt a resolution ordering an election that includes
authorization for an ad valorem tax that exceeds thirty cents ($.30)
per one hundred dollars ($100.00) of assessed valuation.
4.3.5 Reimbursement of Expenses. To the extent permitted by law, and
only to the extent that general operating revenues are available for
such purposes, the CFD Board Members shall be reimbursed fortheir
actual costs and expenses incurred in performing their duties.
4.3.6 Loans to CFD. In the event payments become due from the CFD
under any agreement to which the CFD is a party, or if funds are
required to commence construction of Infrastructure before the Bond
Proceeds are available, or otherwise to fulfill the CFD's obligations
under this Agreement or the CFD Act, the Developer shall have the
right, but not the obligation, to make a loan to the CFD in such
amounts and upon such terms to be agreed upon between the CFD
Board and the Developer. The terms and sources of repayment of the
loan shall be set forth in the documents, and the repayment terms
may provide for interest charges and repayment from any available
source, including Bond Proceeds to the extent permitted by law.
4.4 Construction and Acquisition of Infrastructure.
4.4.1 Implementation of CFD General Plan. Upon formation, the CFD Board
shall adopt it's the CFD General Plan and may thereafter implement
the CFD General Plan in a reasonable manner and as set forth in this
Agreement. The Town and the CFD shall use their best efforts, in
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cooperation with the Developer, to enter into such additional IGAs
with the County as may be required to implement the CFD General
Plan.
4.4.2 Phasing of Development. The Town acknowledges that the
Developer intends to develop the Property in phases, the size and
timing of which shall be dictated by market conditions, and agrees
that the Infrastructure will be constructed in phases as agreed
between the parties, subject to fulfillment of the requirements of this
Agreement.
4.4.3 Feasibility Reports.
4.4.3.1 Initial Phase. At any time after the formation of the CFD
the Developer shall have the right to submit to the CFD
Board one or more feasibility reports concerning the
construction, acquisition, and financing of all or a part of
the Infrastructure [hereinafter "Feasibility Report"],
which Feasibility Report shall meet the requirements set
forth in Paragraph 4.4.3.2 for feasibility reports and the
Marana CFD Guidelines. After obtaining the Feasibility
Report and after complying with the notice requirements
of the CFD Act, the CFD shall hold a public hearing on
the Feasibility Report in accordance with the CFD Act.
As soon as reasonably possible the CFD Board shall in
its sole and absolute discretion either approve or reject
the Feasibility Report. If the Feasibility Report is
rejected the reason(s) for rejection shall be specifically
set forth in reasonable detail. If the CFD approves the
Feasibility Report, it shall adopt an appropriate
resolution [hereinafter "Resolution"] authorizing the
financing for the construction or acquisition of the
Infrastructure in Completed Segments (defined below)
and the payment or reimbursement therefor to be
completed.
4.4.3.2 Contents of the Reports Submitted. Each Feasibility
Report shall be consistent with the General Plan and
shall set forth all of the following: (i) a detailed
description of the Infrastructure to be constructed or
acquired and any to be constructed with funds
advanced to any other governmental agency by
intergovernmental agreement with the CFD, (ii) an
estimate of construction or acquisition costs and
operation and maintenance costs, (iii) benefits analysis,
(iv) proposed allocation of assessments or taxes, (v) the
method of financing the construction or acquisition of
the specific Infrastructure, including any rights-of-way or
improvements necessary therefor and indicating
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specific portions thereof to be acquired as construction
is completed [hereinafter "Completed Segments"], and
(vi) analysis of the financial feasibility of the financing
method designated and details concerning the types of
bonds to be issued and the proposed repayment
method.
4.4.3.3 Withdrawal of Reports. Notwithstanding any of the
foregoing, the Developer shall be permitted to withdraw
any Feasibility Report submitted by the Developer from
consideration by the CFD at any time before the
conclusion of the hearing thereon. In the event of such
a withdrawal, the CFD shall not approve the Feasibility
Report or adopt any resolution which would effect an
implementation of any part of the transaction described
in such Feasibility Report. The Developer shall be
permitted to resubmit any such withdrawn Feasibility
Report or any Feasibility Report which has been
rejected by the CFD and then amended by the
Developer, at such time as the Developer may, in its
sole discretion, deem advisable; and any such
resubmitted Feasibility Report shall be processed and
approved by the CFD in the same manner as if it were
being submitted for the first time.
4.4.3.4 Reimbursement of Expenses. The Developer submitting
the Report, or the Developer or any other party
submitting any subsequent Feasibility Report may,
upon approval of the Feasibility Report by the CFD, be
reimbursed for reasonable costs and expenses incurred
in the preparation thereof, including the cost of
engineering and traffic studies and other expenditures
required to comply with the Zoning Ordinance and the
Site Analysis from the Bond Proceeds, to the extent
permitted by law and only to the extent that Bond
Proceeds are available for such purpose.
4.5 Developer's Right to Construct Infrastructure. Subject to the approval of the
Town or the CFD, the Developer shall have the right to cause to be
constructed, utilizing public bidding procedures and laws, any part or all of
the Infrastructure in conformity with the General Plan, the applicable
Feasibility Report and this Agreement, and to have the CFD finance the cost
of acquisition of the Infrastructure constructed subject to the approval by the
CFD Board of a Feasibility Report pertaining to such Infrastructure. All such
construction shall be performed, subject to applicable permit requirements
for any buildings to be constructed, and in a good and workmanlike manner
and in compliance with all applicable standards, codes, rules or regulations
of the Town, including modifications thereof as provided in the Site Analysis
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and the Zoning Ordinance, and of the County, the State of Arizona, or the
federal government, if applicable. Either a preliminary or final map of
dedication in form and content acceptable to the Town or the CFD and the
Developer shall be filed with and approved by the appropriate governmental
authority. The Developer, its agents and employees, shall have the additional
right, upon the CFD's approval of the Feasibility Report pertaining to such
construction as provided for herein, to enter and remain upon and cross over
any Town or CFD easements or rights-of-way to the extent reasonably
necessary to facilitate such construction and for necessary repairs or
maintenance of the Infrastructure, provided that the Developer shall restore
such easements and rights-of-way to their prior condition upon completion
of such construction, repairs or maintenance. To the extent permitted by law,
the prior dedication of any easements or rights-of-way shall not affect or
proscribe the Developer's right to construct Infrastructure thereon or to be
paid or reimbursed for such construction upon acquisition by the CFD.
4.6 CFD's Construction of Infrastructure.
4.6.1 Construction Management. If the Developer has not indicated in the
Feasibility Report that it has caused the construction of all or any part
of the Infrastructure which is in part of the CFD General Plan and for
which a Feasibility Report has been approved by the CFD, the CFD
may, as soon as reasonably possible following its approval of such
Feasibility Report and the sale of any bonds required to finance the
construction, and subject to any applicable public bidding
requirements imposed by Arizona law, award a construction
agreement (or give a notice to proceed) to a company acceptable to
the CFD, provided however, that the contractor cannot be the
company that designed the Infrastructure, and shall enter into a
written agreement in form and content acceptable to the CFD
providing for the completion of construction of the Infrastructure as
described in the applicable Feasibility Report in a good and
workmanlike manner and at reasonable rates, subject to any
applicable competitive bidding requirements imposed by Arizona law.
Such agreement being executed, the CFD shall obtain and the
Developer agrees to dedicate at no cost any and all necessary utility
easements, street rights-of-way and other rights-of-way that are
owned by the Developer [hereinafter "Dedication Property"], and
proceed to acquire in the manner described in Paragraph 4.9 hereof
any other property not dedicated and shall require that construction
of the applicable phase of Infrastructure as described in the approved
Feasibility Report commence as soon as reasonably possible
thereafter.
4.6.2 Construction Standards: Control. The CFD shall use its best efforts to
cause all such construction or other work to be performed herein in
conformity with the General Plan and the applicable Feasibility
Report, in a good and workmanlike manner and in compliance with all
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applicable standards, codes, rules or regulations of the Town,
including modifications thereof as provided in the Site Analysis, the
Zoning Ordinance, Pima County, the State of Arizona, or the federal
government. Notwithstanding the foregoing, the CFD Board shall
have exclusive jurisdiction and control over all of the construction by
the CFD, subject to the Town's right to inspect the construction of
improvements and except to the extent that the CFD Board may by
agreement with any other public or private body authorize the same
to exercise jurisdiction or control over any or all of the Projects of the
CFD. It shall not be necessary for the CFD to pay any fee, other than
the customary fee imposed by the Town generally applicable to other
governmental agencies, to obtain any license, permit or other
authorization from any board, commission or department of the Town,
in order to construct, reconstruct, acquire, extend, repair, improve,
maintain or operate any portion of the Infrastructure. Copies of
as-built drawings shall be provided to the Town for all such
improvements constructed by or on behalf of the CFD.
4.6.3 All Infrastructure financed with Bond Proceeds will be public
infrastructure improvements as described in the CFD Act.
4.6.4 Construction of all bond financed Infrastructure will be publicly bid and
awarded to the lowest responsible and reputable bidder.
4.6.5 Payment and performance of all bond financed Infrastructure will be
insured by performance and payment bonds or other acceptable form
of assurance.
4.6.6 Pursuant to an approved Feasibility Report as provided in Paragraph
4.4.3, the CFD may acquire property, other than the Dedication
Property, from the Developer or other third parties at fair market
value.
4.7 Bond Issuance and Sale.
4.7.1 Order. After approval of a Feasibility Report and the adoption of the
Resolution, the CFD Board shall adopt and approve an appropriate
bond resolution and other financing documents in a form acceptable
to the CFD and Bond Counsel to the CFD (the "Bond Resolution"),
ordering the issuance and sale of bonds as provided in the approved
Feasibility Report, in an amount not greater than the amount provided
for in the approved Feasibility Report, and allowing for sales of bonds
in increments to accommodate any sub-phasing, for the purpose of
financing the payment of or reimbursement for the construction or
acquisition of the Infrastructure.
4.7.2 Proceeds. Each Bond Resolution shall provide that the proceeds
derived from the sale of the bonds described therein [hereinafter
"Bond Proceeds"] shall be deposited in such funds as are necessary.
Bond Proceeds delivered to the various funds established by the
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Bond Resolution of the CFD shall be used solely for the purposes set
forth in the Bond Resolution. The Bond Resolution shall prescribe in
a reasonable manner that the Bond Proceeds be used solely to pay
or to reimburse, to the extent permitted by law, the costs (including
necessary incidental costs) of construction or acquisition of the
I nfrastructu re.
4.7.3 Ad Valorem Taxes. Subject to the limitations stated in Paragraphs
4.3.4 and 4.8.1 hereof, and subject to Article 4 of the Marana CFD
Guidelines, the CFD may annually levy and collect an ad valorem tax
upon all taxable property in the CFD which shall be sufficient after
giving prudent consideration to other funds available to the CFD to
make such payments (i) to pay when due the principal of, interest on
and premium, if any, on the GO Debt (as hereinafter defined) incurred
by the CFD to finance the construction or acquisition of Infrastructure,
and as otherwise provided by Paragraph 4.8.1; and (ii) to the extent
permitted by law, to pay reasonable maintenance, operating and other
expenses of the CFD.
4.8 Bond Restrictions. Notwithstanding anything contained herein to the
contrary, the following restrictions shall apply to and restrict the CFD or Other
District:
4.8.1 No indebtedness (indebtedness shall not include maintenance or
operation expenses) secured by a pledge of ad valorem taxes,
including, but not limited to, general obligation bonds (collectively
hereinafter referred to as "GO Debt"), shall be incurred unless ninety-
five percent (95%) of the amount of ad valorem taxes estimated to be
collected at a tax rate of not greater than three dollars ($3.00) per one
hundred dollars ($100.00) of the secondary assessed value of the
taxable property within the CFD, is sufficient to pay the highest
combined debt service requirements for the proposed GO Debt and
any other GO Debt outstanding. The secondary assessed value of
the taxable property shall, for purposes of this paragraph, be equal to
the value at the time of the issuance of the proposed GO Debt as
shown in the records of the County Assessor. Notwithstanding the
foregoing or any other provision of this Agreement, GO Debt may be
authorized by the CFD governing board in its sole discretion, for
situations where a tax rate greater than three dollars ($3.00) per one
hundred dollars ($100.00) of secondary assessed value of taxable
property would be necessary to pay the highest combined debt
service of the proposed and outstanding GO Debt, if other sources of
revenue acceptable to the CFD Board are irrevocably pledged to pay
debt service on the GO Debt in an amount that, when combined with
the taxes collected at a three dollar ($3.00) tax rate or less, provides
a sufficient amount to pay the highest combined debt service of the
proposed and outstanding GO Debt.
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4.8.2 Each assessment lien for assessment bonds shall be, as required by
law, a first lien subject only to a lien for general taxes, and, if
approved by the Town, and if applicable, the CFD Board, prior
assessment liens.
4.8.3 Unless otherwise approved by the CFD, the CFD shall not offer and
sell publicly or privately, or allow transfers, to a buyer that is not a
"qualified institutional buyer" as such term is defined in Rule 144A of
the Securities Exchange Commission, and pursuant to Section 4.5 (g)
and 4.6(f) of the Marana CFD Guidelines, CFD general obligation or
revenue bonds unless: (i) such bonds have received an investment
grade rating or, (ii) such bonds are insured by an insurance company
or are secured by other credit enhancement acceptable to the CFD
Board. In the case of CFD assessment bonds, such bonds shall not
be publicly or privately offered and sold unless either the requirement
of "(i)" or "(ii)" heretofore set forth is met or the requirements of
Section 4.7(e) of the Marana CFD Guidelines are satisfied, provided,
however, the land value to debt ratios for public offerings shall be at
least 5 to 1 and for privately placed transactions at least 3 to 1 (as
valued after completion of the relevant infrastructure).
4.8.4 No subsequent transfers of privately placed CFD assessment bonds
will be allowed to entities other than entities described in the Marana
CFD Guidelines unless the requirements for publicly offering the
bonds have been met.
4.8.5 The Developer shall indemnify the Town, the CFD, and their agents
and employees and shall hold the Town, the CFD, and their agents
and employees harmless for, from, and against any and all claims and
costs incurred, including but not limited to reasonable attorneys' fees
in connection with a challenge in any subsequent judicial or
administrative proceeding related to (i) the formation of the CFD or
Other Districts; (ii) the levy and collection by the Town, CFD or Other
Districts of any tax or assessment; (Hi) the offer and sale of any
security by the Town, CFD or Other Districts, including but not limited
to, securities fraud; (iv) the authority of the Town, the CFD, or Other
Districts to carry out the provisions of the CFD Act and this
Agreement; (v) the formation of the CFD or other Districts by the
Town; or (vi) the Town's ability to enter into this Agreement. The
indemnity provided herein shall survive any termination of this
Agreement.
4.8.6 Any disclosure document prepared in connection with the offer or sale
of CFD bonds must clearly indicate that neither the Town nor the
State of Arizona or any political subdivision of either (other than the
CFD) shall be liable for the payment or repayment of any obligation,
liability, bond, or indebtedness of the CFD, and neither the credit nor
the taxing power of the Town, the State of Arizona, or any political
subdivision of either (other than the CFD) shall be pledged therefor.
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4.8.7 A disclosure document, as set out in Section 2.8 of the Marana CFD
Guidelines, must be provided by Developer or Developer's successor
to each potential purchaser of a residential lot within the CFD
disclosing the existence of a CFD assessment or tax (assuming such
assessment or tax remains at the time of sale to the potential
purchaser). Each potential purchaser must acknowledge in writing
that the purchaser received and understood the disclosure document.
The CFD shall maintain records of the written acknowledgments. To
provide evidence satisfactory to the CFD Board that any prospective
purchaser of land within the boundaries of the CFD has been notified
that such land is within the boundaries of the CFD and that the Bonds
may be then or in the future outstanding, a disclosure pamphlet
substantially in the form of Exhibit G hereto [hereinafter "Pamphlet"]
shall be produced; provided, however that the Pamphlet may be
modified as necessary in the future to adequately describe the CFD
and the Bonds and source of payment for debt service therefor as
agreed by the CFD Board and the Developer.
4.8.8 The CFD shall comply with voter and/or landowner approval
requirements pursuant to all applicable state statutes.
4.8.9 Within a time period acceptable to the Town and the CFD Board, the
Developer will provide "Developer's Equity" of at least twenty-five
cents ($.25) for each dollar ($1.00) of debt to be issued by the CFD
or Other District, as set out in Section 5.1 of the Marana CFD
Guidelines. "Developer's Equity" shall mean the cost of all non-district
financed improvements benefitting the Property orthe Town provided
by the Developer or future purchasers and/or owners. So long as
such improvements are not financed through the CFD, this
Developer's Equity may be satisfied in part of full by the construction
of the golf course set forth in section 1.5.
4.9 CFD Acquisition of Infrastructure.
4.9.1 Sale of Completed Segments. Upon the Developer's requestfollowing
the completion of construction of a Completed Segment (defined as
each Project in completed, discrete portions as determined by the
Engineers and the CFD Board) of the Infrastructure and upon receipt
by the Developer of all payments provided for such improvements in
the Resolution, or after the Developer has received a binding
commitment from the CFD providing for such payment to be made by
the CFD in the future, the Developer will convey the Completed
Segment, together with the underlying easements and rights-of-way
and sites described in the Resolution (if not previously dedicated or
included as Dedication Property), to the CFD, or, if approved by the
Town, the Town, and, the CFD or Town, as applicable, shall promptly
accept and approve such dedications in the manner provided for in
Paragraph 4.9.3 below; provided, however, that the Developer shall
be permitted to retain an interest in the Completed Segment by
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agreement with the CFD until full payment has been received by the
Developer.
4.9.2 Acquisition Price. The CFD's acquisition of any Completed Segment,
upon acceptance by the CFD, shall be subject to the following:
4.9.2.1 Unless otherwise agreed, the CFD shall pay the party
constructing the Completed Segments for the
Completed Segment an amount equal to the actual
costs and expenses reasonably incurred in constructing
that Completed Segment and for acquiring any land as
intended by section 4.6.6 of this Agreement (excluding
the Dedication Property). The segment price for a
segment shall be equal to the sum of the amounts paid
by the Developer for (i) design of the segment, (ii)
construction of the segment pursuant to the contract for
such segment such amount to be equal to the bid
amount together with any additions or deductions to
such bid amount set forth in approved change orders),
(iii) inspection and supervision of performance under
such contract and (iv) other miscellaneous costs for
such segment attributable to construction of the
segment approved by the Engineers and the CFD
Board. The segment price shall be certified in the
certificate of the Engineers for that segment.
4.9.3 Acceptance by the CFD. All transfers of Completed Segment to the
CFD or Town pursuant to this Agreement, with or without
consideration, shall be accepted by the CFD or Town if the
Completed Segment is free and clear of liens or other monetary
encumbrances or adverse environmental conditions and if the
Infrastructure portion thereof is covered by the normal warranties
required by the Town and is consistent with the Feasibility Report
pertaining thereto and in compliance with applicable Town standards,
as modified by the Zoning Ordinance, Site Analysis and County
standards, as appropriate. Nothing in this Paragraph shall be
construed to prohibit or otherwise limit the ability of the Developer or
any other private land owner to dedicate property to a CFD or Town
without consideration by instrument in form and content reasonably
acceptable to the Developer and the CFD or Town.
4.10 Adding Property to CFD. The CFD may, pursuant to A.R.S. 948-714, add
an area into the CFD.
4.11 Other Districts. Upon the Developer's request, the Town shall consider the
formation of one or more Other Districts in order to implement other sources
of development financing for the purpose of financing the cost of construction
or maintenance of any or all of the Infrastructure, whether or not the
construction of such Infrastructure is the responsibility of the Developer or
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the CFD formed pursuant hereto. The formation of an Other District and the
terms and conditions of other sources of development financing shall be in
the sole and absolute discretion of the Town.
5 Public Ownership and Maintenance of Certain Infrastructure.
5.1 Dedications of Infrastructure. No later than forty-five (45) days after the
approval of the Feasibility Report, if requested, the Town may approve, if it
has not yet done so, and the CFD shall request that the Town approve a final
map of dedication with respect to the property described in such Feasibility
Report. The CFD shall, as soon as practicable after approval of the final map
of dedication, and after the construction of the Infrastructure or any
Completed Segment thereof has been concluded, acquire the Completed
Segment and accept an assignment of the rights to receive any future
payment of Town revenues resulting therefrom. As soon as the CFD and
Town determine that it is feasible, the CFD shall dedicate ownership of such
Infrastructure and land easements and rights-of-way associated therewith to
the Town by instrument in form and content acceptable to the CFD and the
Town. The CFD shall request that the Town shall immediately thereafter
accept such dedications, and the Town shall thereafter, at its own cost and
expense, accept, maintain and operate such Infrastructure in accordance
with its customary standards, provided however, that any capital repair to
such Infrastructure needed during the period of one year following dedication
shall not be at the Town's expense. Upon the request of the Town, a CFD's
Infrastructure that is not otherwise dedicated or required to be dedicated to
another governmental authority shall be dedicated by the CFD to the Town,
which shall immediately thereafter accept and approve such dedications;
provided, however, that the CFD may elect to continue to operate and
maintain, in cooperation with the Town, all or any portion of such
Infrastructure dedicated to the Town.
5.1.1 Notwithstanding the above, the Developer, the CFD, a homeowners'
association (hereinafter "HOA") or other entity created by the
Developer, but in any event not the Town, shall maintain all
Infrastructure until such time as the Town consents in writing to
accept the maintenance and operation of such Infrastructure. Until
accepted by the Town, the Developer, the CFD, HOA, or other entity
shall maintain such Infrastructure in a reasonable manner.
5.2 Contributions. In order to fairly distribute the burden imposed in acquiring,
planning, and constructing the Infrastructure that may be constructed or
acquired by the CFD pursuant to this Agreement, the Town and the CFD
agree to use reasonable efforts, to the extent permitted by law, to require or
to cause property owners adjacent to and/or benefitting from such
Infrastructure to pay their proportionate share as determined by the Town.
6 CFD Budgets.
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6.1 Administrative Expenses. The CFD shall provide in its budget amounts
necessary for its own administration expenses. The CFD administrative
expenses shall be paid as set forth in the Marana CFD Guidelines.
7 Cooperation and Alternative Dispute Resolution.
7.1 Appointment of Representatives. To further the commitment of the parties
to cooperate in the implementation of the Site Analysis, the Zoning
Ordinance and this Agreement, 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 [hereinafter "Town Representative"] shall be the Planning Director,
and the initial representative for the Developer shall be Jack "Bing"
Sherwood or a replacement project manager 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 pursuant to the Site Analysis, the Zoning
Ordinance and the MDC. The representatives may recommend
amendments to the Site Analysis or this Agreement which may be agreed
upon by the parties pursuant to Paragraph 1.4 above.
7.2 Timing. The Town acknowledges the necessity for prompt review by the
Town of all plans and other materials ("Submitted Materials") submitted by
the Developer to the Town hereunder or pursuant to any zoning procedure,
permit procedure, or other governmental procedure pertaining to the
development of the Property and agrees to use its best efforts to accomplish
such prompt review of the Submitted Materials whenever possible.
7.3 Outside Consultants. In the event the Town or the CFD is unable to provide
sufficient personnel (either in-house staff or outside consultants to the Town)
to review the Submitted Materials within the time desired by the Developer,
the Developer may elect to pay the reasonable costs incurred by the Town
to retain such consultants or other experts as the Town may reasonably
deem necessary to review the Submitted Materials on behalf of the Town.
Because of the Developer's liability for the Consultant's fees, any consultants
under this paragraph shall be selected by the agreement of both the Town
and the Developer. The Town and the Developer shall diligently select
consultants following a request by the Developer hereunder. The Developer
acknowledges that the consultants' recommendations will be subject to
review and revision by the Town Staff and that the Town shall not be bound
by any of the consultants' recommendations unless adopted by the Town
Council or other board or person having final approval rights on each
Submitted Material. The Developer's liability for a Consultant's fees
hereunder shall be unconditional and the Developer shall indemnify and hold
the Town harmless from any claims relating to such fees. In addition to the
foregoing, Developer shall reimburse the Town for its attorney fees incurred
as a result of the negotiation and preparation of this Agreement. The
reimbursement of attorney fees shall be payable within 30 days of request
by the Town.
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7.4 Default. Failure or unreasonable delay by either party to perform any term
or provision of this Agreement for a period of ninety (90) days [hereinafter
"Cure Period"] after written notice thereof from the other party shall constitute
a default under this Agreement. Said notice shall specify the nature of the
alleged default and the manner in which said default may be satisfactorily
cured, if possible.
8 Notices and Filings.
8.1 Manner of Serving. All notices, filings, consents, approvals and other
communications provided for herein or given in connection herewith
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:
The Town
Town of Marana
Town Manager
13251 N. Lon Adams Road
Marana, Arizona 85653
With a copy to:
Daniel J. Hochuli, Esq.
Daniel J. Hochuli & Associates
220 East Wetmore Rd., Suite 110
Tucson, Arizona 85705
The Developer
Jack "Bing" Sherwood
Best Companies
6339 E. Speedway Blvd., Suite 200
Tucson, Arizona 85710-1147
With a Copy to:
Sidney Y. Kohn
The Kohn Partnership
1200 N. EI Dorado Place, Suite H-810
Tucson, Arizona 85710
or to such other addresses as either party hereto may from time to
time designate in writing and deliver in a like manner.
9 General Terms & Conditions.
9.1 Term. If not sooner terminated concurrent with a dissolution of the CFD as
provided in the CFD Act, this Agreement shall automatically terminate and
shall thereafter be void for all purposes on the earlier of (a) the date when (i)
all of the Infrastructure has been constructed or acquired, together with the
underlying land (excluding the Dedication Property, which shall be dedicated
to the CFD) associated therewith, if any, by the CFD and certain Sewer
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Infrastructure and other Infrastructure have been dedicated to the County or
the Town in accordance with the terms of this Agreement, and when the CFD
has transferred ownership and provided for another party to assume
responsibility for operation and maintenance of all remaining Infrastructure
owned or operated and maintained by the CFD, and (ii) all outstanding bonds
and other obligations of the CFD either have been paid in full or have been
assumed by another party or if the CFD has provided for payment of the
CFD's obligations by an irrevocable pledge of sufficient funds to make full
payment or (b) the date which is the twenty-fifth (25th) anniversary of the
date of this Agreement. If the parties determine that a longer period is
necessary for any reason, the term of this Agreement may be extended by
written acknowledgment executed by the parties.
9.2 Waiver. No delay in exercising any right or remedy shall constitute a waiver
thereof, and no waiver by the Town, any CFD or other District or any
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.
9.3 Tax. Neither the Town, the CFD nor the Developer shall knowingly take, or
cause to be taken, any action that would cause interest on any Bond to be
included in gross income for federal income tax purposes pursuant to
Section 61 of the Internal Revenue Code of 1986, as amended.
9.4 Attorneys' Fees. In the event any party hereto finds it necessary to bring an
action at law or other proceeding against any other party to enforce any of
the terms, covenants or conditions hereof, or by reason of any breach of
default hereunder, the party prevailing in any such action or other proceeding
shall be paid all reasonable costs 8:nd reasonable attorneys' fees by the
other party, and in" the event any judgment is secured by said prevailing
party, all such costs and attorneys' fees shall be included therein, such fees
to be set by the court and not by jury.
9.5 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.
9.6 Headings and Recitals. The descriptive headings of the sections of this
Agreement are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof. The Recitals set
forth at the beginning of this Agreement are hereby acknowledged and
incorporated herein and the parties hereby confirm the accuracy thereof.
9.7 Exhibits. Any exhibit attached hereto shall be deemed to have been
incorporated herein by this reference with the same force and effect as if fully
set forth in the body hereof.
Maranaffwin Peaks Development Agreement
21
10798
686
9.8 Further Acts. Each of the parties hereto shall execute and deliver all such
documents and perform all such acts as reasonably necessary, from time to
time, to carry out the matters 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 or the Other Property by the Developer and its
successors.
9.9 Future Effect.
9.9.1 Time Essence and Successors. Time is of the essence of this
Agreement. All of the provisions hereof shall inure to the benefit of
and be binding upon the successors, assigns and legal representative
of the parties hereto. Notwithstanding the foregoing, to the extent
permitted by law, the Developer's rights hereunder may only be
assigned by a written instrument, agreed to by all of the parties to the
Agreement hereto and recorded in the Official Records of Pima
County, Arizona, expressly assigning such rights, and no obligation
of the Developer (other than the payment of taxes, assessments or
charges imposed on the Developer in conjunction with those imposed
on other property owners within the CFD or other District or others
using CFD or other District facilities or property) hereunder shall be
binding upon anyone owning any right, title or interest in the Property
or the Other Property unless such obligation has been specifically
assumed in writing or unless otherwise required by law. In the event
of a complete assignment by Developer of all rights and obligations
of Developer hereunder, Developer's liability hereunder shall
terminate effective upon the assumption by Developer's assignee,
provided that the Town and the CFD have approved the assignment
to such assignee, which approval shall not unreasonably be withheld.
9.9.2 Termination Upon Sale to Public. It is the intention of the parties that
although recorded, this Agreement shall not create conditions or
exceptions to title or covenants running with the land. Nevertheless,
. in order to alleviate any concern as to the effect of this Agreement on
the status of title to any of the Property, 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 purchaser or user thereof and
thereupon such lot shall be released from and no longer be subject to
or burdened by the provisions of this Agreement. Nothing herein shall
limit or affect the validity of documents to be recorded other than this
Agreement nor of the proposed bond obligations and tax
assessments which, when imposed upon the Property, shall run with
the land in accordance with applicable laws.
MaranafTwin Peaks Development Agreement
22
10798 687
9.10 No Partnership and Third Parties. It is not intended by this Agreement to,
and nothing contained in this Agreement shall, create any partnership, joint
venture or other arrangement between the Developer, the CFD 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 hereto,
and no such other person, firm, organization or corporation shall have any
right or cause of action hereunder.
9.11 Other Instruments. Each party hereto shall, promptly upon the request of the
other, have acknowledged and delivered to the other any and all further
instruments and assurances reasonably requested or appropriate to
evidence or give effect to the provisions of this Agreement.
9.12 Conflict of Interest. The Town and the CFD may, within three (3) years after
its execution, cancel this Agreement, without penalty or further obligation, if
any person significantly involved in initiating, negotiating, securing, drafting
or creating this Agreement on behalf of the Town or the CFD, respectively,
is, at any time while this Agreement is in effect, an employee or agent of the
Developer in any capacity or a consultant to any other party of this
Agreement with respect to the subject matter of this Agreement and may
recoup and fee or commission paid or due any person significantly involved
in initiating, negotiating, securing, drafting or creating this Agreement on
behalf of the Town or the CFD, respectively, from the Developer arising as
a result of this Agreement. The Developer has not taken and shall not take
any action which would cause any person described in the preceding
sentence to be or become an employee or agent of the Developer in any
capacity or a consultant to any party to this Agreement with respect to the
subject mater of this Agreement.
9.13 Imposition of Duty By Law. This Agreement does not relieve any party
hereto of any obligation or responsibility imposed upon it by law.
9.14 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof. All prior
and contemporaneous agreements, representations and understanding of
the parties, oral or written, are hereby superseded and merged herein.
9.15 Amendment. No change or addition is to be made to this Agreement except
by a written amendment executed by the parties. Within ten (10) days after
any amendment to this Agreement, such amendment shall be recorded by,
and at the expense of, the party requesting the amendment, in the Official
Records of Pima County, Arizona.
9.16 Names and Plans. The Developer shall be the sole owner of all names,
titles, plans, drawings, specifications, ideas, programs, 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 the
Other 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
Marana/Twin Peaks Development Agreement
23
10798 588
be assigned to the extent that such rights are assignable, to the appropriate
governmental authority. Notwithstanding the foregoing, the CFD or other
District shall be entitled to utilize all such materials described herein to the
extent required for the CFD to construct, operate or maintain improvements
financed by the CFD or other District.
9.17 Good Standing: Authority. The Developer represents and warrants to the
others that it is duly formed and validly existing under the laws of Arizona.
The Town represents and warrants to the other parties that it is an Arizona
municipal corporation duly qualified to do business in the State of Arizona
and is in good standing under applicable state laws. Each of the parties
hereto represents and warrants to the others that the individual(s) executing
this Agreement on behalf of the respective parties are authorized and
empowered to bind the party on whose behalf each such individual is
signing.
9.18 Severability. If any provision of this Agreement is declared void or
unenforceable, such provision shall be severed from this Agreement, which
shall otherwise remain in full force and effect. If any applicable law or court
of competent jurisdiction prohibits or excuses the Town from undertaking any
contractual commitment to perform any act hereunder, this Agreement shall
remain in full force and effect, but the provision requiring such action shall be
deemed to permit the Town to take such action at its discretion. If, however,
the Town fails to take the action specified hereunder, the Developer shall be
entitled to terminate this Agreement.
9.19 Governing Law/Arbitration. 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. In particular, this Agreement is subject to the provisions of A.R.S.
~ 38-511. This Agreement has been ne'gotiated by separate legal counsel
for 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. 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 any court having
jurisdiction thereof.
9.20 Recordation. No later than ten (10) days after this Agreement has been
executed by the Town and the Developer, it shall be recorded in its entirety,
by, and at the expense of, the Developer, in the Official Records of Pima
County, Arizona.
9.21 No Developer Representations. Except as specifically set forth herein,
nothing contained herein or in the Site Analysis shall be deemed to obligate
the Town or the Developer to complete any part or all of the development of
Marana/Twin Peaks Development Agreement
24
'0798
689
the Property, and the Site Analysis shall not be deemed a representation or
warranty by the Developer of any kind whatsoever.
9.22 Default and Remedies. If any party to this Agreement is in default under any
provision of this Agreement, the non-defaulting party shall be entitled, without
prejudice to any other right or remedy that it may have under this Agreement,
at law or in equity, to specific performance by the defaulting party of this
Agreement, or, in the alternative, to terminate this Agreement as if this
Agreement had expired in the normal course and to exercise any and all
other remedies available to it at law or in equity.
9.23 Approval. If the 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.
9.24 Force Majeure. If any party hereto shall be unable to observe or perform any
covenant or condition herein by reason of "force majeure," then the failure to
observe or perform such covenant or condition shall not constitute a default
hereunder 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 here, 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 mind of the 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 ro 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
judgement of the party hereto unfavorable to such party, shall not constitute
failure to use its best efforts to remedy such a condition.
9.25 Definitions. Unless otherwise defined in this Agreement, all terms used
herein shall have the meaning assigned to such terms in the CFD Act so
long as such interpretation does not conflict with any other provision of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year written below.
Marana/Twin Peaks Development Agreement
10798 690
25
Date:
/~~~
TOWN OF MARANA, an Arizona municipal
corporation
By Qu.:21("1/. ~
Mayor Ora Harn '
S TO FORM AND AUTHORITY
e fo egoin Agreement has been reviewed
by the rsigned attorney who has
determined that it is in proper form and within
the power and authority granted under the laws
of the State of Arizona to the Town of Marana.
~.?? ~.J7
-Daniel"J. Hochul , - sq. .-
Attorney for Town of Marana
BEST LLC II, A Limited Liability Company
f
Byx'
Its
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing document wJt sw r 0 and ack wledged before ~e the /y<>~1~ay
of --7)) t.~(-4- , 1997, by , ../1 , the hI t:..~ hiYV of
B ' I .. ... C mpany, on behalf of said limited liability company.
8 . OFFlClAl"EAl
LINDA D. HERSHA
. Notary Public
. Pima Co.. Arizona .
My Commission Expires I
April 23. 1999 <. Not
MY1omr:ni1s~iO;~ ex?~~/
( ,/J/t.,:{ ;!~J / ;jc,
/ /
MaranafTwin Peaks Development Agreement
26
10798 691
10798 692
EXHIBIT A
No. 152835
PARCEL NO. 1:
All of Section 18, township 12 South, Range 12 East of the Gila and Salt River Base and
Meridian, Pima County, Arizona, except the following described property:
A strip ofland 100 feet in width through Section 18, Township 12 South, Range 12 East,
Gila and Salt River Base and Meridian, the center line of said 100 foot strip being
described as follows:
Beginning at a point in the West line of said Section 18, which point is North 0 degrees
04 minutes East, a distance of 1762 feet from\the Southwest corner of said Section 18;
Thence North 38 degrees 30 minutes East, a distance of 4500 feet, more or less, to a point
in the North line of said Section 18, which point is 280 feet Easterly along said North line
from the North quarter corner of said Section 18.
PARCEL NO.2:
The Northwest quarter of the Northwest quarter of Section 17 , Township 12 south, Range
12 East of the Gila and Salt River Base and Meridian, Pima County, Arizona.
10798
693
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EXHIBIT B
10798 695
lVIARANA ORDINANCE NO. 97.04
AL"J ORDINAL"JCE OF THE MAYOR AL'ID COUNCIL OF THE TOWN OF MARANA,
ARIZONA, CHANGING THE ZONING OF CERTAIN PROPERTY OWNED BY BEST
ASSOCIATES, L.L.c., AND LOCATED IN SECTION 18 AND WITHIN THE NORTHWEST
1/4 OF SECTION 17 TOWNSHIP 12 SOUTH, RAL"JGE 12 EAST, BORDERED BY LAMBERT
LANE TO THE NORTH AND TWIN PEAKS ROAD TO THE SOUTH FROM "ZONE C"
(LARGE LOT ZONE, NllNIMUM LOT SIZE 25 ACRES) TO "ZONE R-36" (SINGLE FAMILY
RESIDENTIAL, MINlNfUM LOT SIZE 36,000 SQUARE FEET), "ZONE R-6" (SINGLE
FAMILY RESIDENTIAL, MINllvfUM LOT SIZE 6,000 SQUARE FEET) AND "ZONE MH'
(NIA1'ruF ACTURED HOME).
WHEREAS, Best Associates, L.L.C., a,\e the owners of approximately 652 acres ofland
located in section 18 and within the northwest 1/4 of section 17, township 12 south, range 12 east,
'f// bordered by Lambert Lane to the north and Twin Peaks Road to the south; and
WHEREAS, the owner, through the applicant, Urban Engineering, has applied to the Town
of Maran a to change the zoning of the property from "Zone C" (Large Lot Zone, minimum lot size
25 acres) to "Zone R-36" (Single Family Residential, minimum lot size 36,000 square feet), "Zone
R-6" (Single Family Residential, minimum lot size 6,000 square feet) and "Zone MH" (Manufactured
Home); and
WHEREAS, the rezone is requested in order to develop single family residential lots, a mobile
home subdivision, and a golf course; and
WHEREAS, the Marana Planning Commission held a public hearing on the rezoning request
on October 30, 1996, and following this public hearing voted 4-1 to recommend that the Town
Council deny the request for rezoning of the property; and
~WHEREAS, the Town Council of the Town of Maran a held a public hearing on the rezoning
request on March 4, 1997, to obtain public input on the request for a change of zoning, and heard
from staff, the representative of the owner, and members of the public and has determined that the
rezoning request should be approved, with conditions.
NOW, THEREFORE, BE IT ORDAINED by the Mayor and Council of the Town ofMarar.a,
Arizona, that:
Section 1. The zoning of approximately 652 acres located on the nOl1h side of Twin Peaks Road
and south of Lambert Lane, specifically located in section 18 and within the northwest 1/4 of section
17, township 12 south, range 12 east, section 17 and more particulary described in Exhibit A attached
hereto, is hereby changed from "Zone C" (Large Lot Zone) to "Zone R-36" (Single Family
Residential, minimum lot size 36,000 square feet), "Zone R-6" (Single Family Residemial, minimum
lot size 6,000 square feet) and "Zone !'vIR" (Manufactured Home), subject to the following
conditions:
:-'larana. :\rizOIl'l Ordinal1c~ 97.0-1 Page I of 3
\0798 695
1. A traffic impact analysis (TIA) and sub-regional transportation study for the parcel must be
submitted by the Developer and accepted by the Town Engineer and Pima County
Department of Transportation prior to the approval of the first preliminary plat or
development plan submitted for this project. The TIA is to include signal warrant studies at
all proposed major intersections, analysis of safety issues at Arizona Portland Cement (APC)
crossings on Lambert Lane and Twin Peaks Road, with recommendations for safety
improvements such as crossing gates, school site accessibility and off-site road improvement
requirements.
2. The Developer is required to dedicate additional right-of-way for the Twin Peaks Road,
Lambert Lane and Airline Road to accommodate a half right-of-way of75 feet or as identified
in the Sub regional Transportation Study.
3. The Developer's financial obligation of $1,000 per dwelling unit in respect to off-site
improvements and.other obligations shall be detailed in a development agreement approved
concurrently with the preliminary block plat for the development.
4. Access to Twin Peaks Road must be accepted and recorded prior to the approval of a
preliminary plat, development plan or building permit.
5. The Developer shall submit a concept plan of the development at the preliminary plat stage
that delineates the proposed internal and external vehicular, bicycle and pedestrian circulation
system and street crossings for approval by the Town Engineer and Marana School District.
Particular emphasis is to be placed on safe accessibility to the proposed school site.
6. Dead end roads (i.e. cuI de sacs) shall not exceed six hundred (600') feet in length.
7. A master water plan must be submitted by the Developer and accepted by the Water Utilities
Director prior to the approval of the preliminary plat by the Town Council.
8. A master sewer plan must be submitted by the Developer and accepted by the Pima County
Wastewater Management and the Town Engineer prior to the approval of the preliminary plat
by the Town Council.
9. The maximum number of dwelling units on the property will not exceed 2,509 in accordance
with the revised Twin Peaks f\'lasterplan Project Summary, dated February 10, 1997, and
revised Land Use Concept, dated February 5, 1997.
10. The school site shall be subject to all Planning and Engineering standards, ordinances, etc. in
effect at the time the school is developed.
11. Residential lots shall not front on any arterial or collector street within or adjoining the
proposed development. Direct access onto Lambert Lane will be reviewed separately and
must be approved by Pima County ~nd the Town Engineer
~laralla. ,\]'izona Ordin:1Il"" 97.0-1 Page 2 of 3
10798 697
Section 2. All Marana ordinances, resolutions, or motions and parts of ordinances, resolutions,
or motions of the Council in conflict with the provisions of this ordinance are hereby repealed,
effective as of the effective date of this ordinance.
Section 3. If any section., subsection, sentence, clause, phrase or portion of this ordinance is for
any reason held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions thereof.
PASSED AND ADOPTED by the Mayor and Council of the Town of~ar, 'la 'Arizona, this
18th day of February, 1997. t( /
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APPR0VED AS TO Fa
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Daniel 1. Hochuli
T own Attorney
:-'l~r~na. .-\rizon:l Ordin:lnc~ 97.04 Page 3 of 3
\0798 698
EXHIBIT C
'.
10798 699
Saguaro Springs Major Infrastructure
Roads: (Exhibit 1)
Twin Peaks: Twin Peaks Road will be widened from the west boundary of the Saguaro
Springs project to a point approximately 600 feet east of its intersection with Saguaro
Springs Drive. Improvements will include paving for left turn lanes and acceleration and
deceleration lanes for right turns onto Saguaro Springs Drive and one additional
intersection west of Saguaro Springs Drive.
Saguaro Springs Drive: Saguaro Springs Drive will be a new major road, approximately
6000 feet in length, between Twin Peaks Road and Lambert Lane. Improvements will
consist of a 4 lane divided roadway with curbs, sidewalks, and utilities.
Lambert Lane: Lambert Lane is an existing two lane road between Airline Road on the
west and where it turns into Silverbell on the east. Proposed improvements are two new
lanes of paving and a bike path from Airline to approximately 600 feet east of Saguaro
Springs Drive.
Airline Road: Airline Road improvements will consist of two lanes of paving and a bike
path extending south from Lambert Lane for approximately 2600 feet and two lanes of
overlay paving between Lambert and A vra Valley Road.
Sanitary Sewer: (Exhibit 2)
Sewer improvements include a collections system, a lift station, and off-site force main and
grayity sewer line. The collection system includes gravity sewer mains ranging in size
frorri"8" to 15" to the lift station. The lift station is made up of a wet well, two sewer
pumps, electrical switches and controls, odor control, paving, fencing, back-up power and
control building. The off-site force main includes a 6' and a 12' line as well as an 8'
reclaimed water line. The force main will discharge into a 15' gravity line.
'Vater System: (Exhibit 3)
The water system will consist of upgrades to existing wells, one new well, construction of
a storage tank, hydropneumatic tank, and a distribution system of 8" to 12" water mains
including fire hydrants.
10798
700
Page 2 of2
Gradin2: and Draina2:e: (Exhibit 4)
Improvements will consist of an improved collector channel on the south side of Twin
Peaks Road, box culvert under Twin Peaks Road, graded channel through the golf course,
box culvert under Quarry Road, graded channel to Airline Road, box culvert under Airline
Road, and graded channel and retention basin to the west. A second graded channel will
drain the area north of the EI Paso gas line and east of Saguaro Springs Road north to an
existing culvert under Lambert Lane.
urban'site\961 03\ 103infdoc
10798
701
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EXHIBIT D
10798 706
EXHIBIT 0
FORM OF NOTICE INVITING BIDS
BEST ASSOCIATES II, LLC
NOTICE OF INVITING BIDS
SAHUARO SPRINGS COMMUNITY FACILITIES DISTRICT
SEALED BIDS MUST BE RECEIVED by Best Associates II, LLC ("Best") until 1 0:00 a.m.
MST, , at
At this time, but bids will be publically opened and read aloud and award will be made to
the lowest responsible bidder. Each bid shall be accompanied by a cashier's check or a
bid bond acceptable to Best for a sum of not less than ten percent t(1 0%) of the amount
of the bid, made payable to Best.
No Bid shall be considered unless it is submitted on the provided bid form. Best reserves
the right to reject all or any part of any bid.
Contact
for additional information.
, Construction Coordinator, at
Plans, specifications and bid forms may be obtained for the sum of $
from the Construction Coordinator, , or by calling
. This fee is non-refundable. Construction documents will not be
available before
For those interested in purchasing plans and specifications by mail, there will be an
additional advance charge of $ to cover postage and handling.
Therefore, a check made payable to Best in the amount of $ should
accompany the request. Please allow four to five days for delivery.
The infrastructure which is the subject of the bids is being bid and constructed pursuant
to the terms of the Development Agreement between Best and the Saguaro Springs
Community Facilities District. The successful contractor will not have recourse, directly or
indirectly, to the Town of Marana or the Community Facilities District for any costs under
any construction contract or any liability, claim or expense arising therefrom.
A pre-bid conference will be held at
at 10:00 a.m. MST. The work consists of construction of:
All bids received in response to this Notice Inviting Bids shall be in conformance with the
applicable Arizona State Law.
MaranafTwin Peaks Development Agreement
10/9(3
707
DRAFT #7.0 -- 4/9/98
EXHIBIT E
'0795 708
EXHIBIT E
FORM OF CERTIFICATE OF ENGINEERS
FOR CONVEYANCE OF SEGMENT OF PROJECT
CERTIFICATE OF ENGINEERS FOR CONVEYANCE OF SEGMENT OF PROJECT
(Insert description of Project/Segment)
STATE OF ARIZONA )
COUNTY OF PIMA )
TOWN OF MARANA )
SAGUARO SPRINGS COMMUNITY FACILITIES DISTRICT )
We the undersigned, being Professional Engineers in the State of Arizona and,
respectively, the duly appointed District Engineerfor Saguaro Springs Community Facilities
District (hereinafter referred to as the "District"), and the engineer employed by Best
Associates II, LLC (hereinafter referred to as the "Owner"), each hereby certify for
purposes of the Development Agreement dated (hereinafter
referred to as the "Agreement"), by and between the District and the Owner that:
1. The Segment indicated above has been performed in every detail pursuant to the
Plans and Specifications (as such terms and all of the other initially capitalized
terms in this Certificate are defined in the Agreement) and the Contract (as modified
by any change orders permitted by the Agreement) for such Segment.
2. The Segment Price as publicly bid and including the cost of approved change
orders for and other costs associated with such Segment is $
3. The Owner provided for compliance with the requirements for public bidding for
~such Segment as required by the Agreement (including, particularly but not by way
of limitation, Title 34, Chapter 2, Article 1, Arizona Revised Statutes, as amended)
in connection with the award of the Contract of such Segment.
4. The Owner filed all construction plans, specifications, contract documents, and
supporting engineering data for the construction or installation of such Segment with
either the Municipality or the District, as appropriate.
MaranafTwin Peaks Development Agreement
10798
709
DRAFT #7.0 -- 4/9/98
The Owner obtained good and sufficient performance and payment bonds in
connection with such Contract.
DATED AND SEALED THIS
day of
,19_"
By:
District Engineer
[P.E. SEAL]
By:
Engineer for Owner
[P.E. SEAL]
[Confirmed for purposes of Section 1.4 of
The Development Agreement by
District Manager, Saguaro Springs
Community Facilities District*]
* To be inserted if the provisions of Section 1.4 hereof are applicable to the respective
Segment of the Project.
MaranafTwin Peaks Development Agreement
DRAFT #7.0 -- 4/9/98
IG798
710
EXHIBIT F
10798 711
EXHIBIT F
Marana Traffic Improvements to be Constructed
With Developer Contributions
Twin Peaks: Twin Peaks Road will be widened from the west boundary of the Saguaro
Springs project to a point approximately 600 feet east of its intersection with Saguaro
Springs Drive. Improvements will include paving for left turn lanes and acceleration and
deceleration lanes for right turns onto Saguaro Springs Drive and one additional
intersection west of Saguaro Springs Drive.
Lambert Lane: Lambert Lane is an existing two lane road between Airline Road on the
west and where it turns into Silverbell on the east. Proposed improvements are two new
lanes of paving and a bike path from Airline to approximately 600 feet east of Saguaro
Springs Drive.
Airline Road: Airline Road improvements will consist of two lanes of paving and a bike
path extending south from Lambert Lane for approximately 2600 feet and two lanes of
overlay paving between Lambert and A vra Valley Road.
Other: Remaining funds to be used for other traffic improvements necessary as a result of
the Development.
\0798
712
-
10798 713
EXHIBIT G
EXHIBIT G
FORM OF DISCLOSURE PAMPHLET
SAGUARO SPRINGS COMMUNITY FACILITIES DISTRICT
BACKGROUND
On September 30, 1988, the Arizona Community Facilities District Act became effective.
The act, which was passed by the state legislature, was created to allow Arizona
municipalities to form CFDs for the purpose of, among others, financing the installation,
operation and/or maintenance of public infrastructure, including that related to
developments such as Saguaro Springs. As traditional sources of funding for public
infrastructure continue to decrease, the popularity offinancing the CFDs will likely continue
to increase as a means of financing the increasing costs of providing and maintaining
public infrastructure.
This informational pamphlet has been prepared by Best Associates II, LLC, on conjunction
with the Town of Marana, Arizona (the "Town") for the purpose of explaining community
facilities districts ("CFDs") in general and specifically the basis for establishing a CFD at
Saguaro Springs. This pamphlet will also describe the financings completed or to be
undertaken by the CFD and the approximate property tax liability for each resident of
Saguaro Springs resulting from inclusion within the CFD, along with the benefits that each
resident will derive because of the CFD.
HOW TH E CFD WORKS
On the Town Council of the Town of Marana formed the CFD
including all of the residential area in Saguaro Springs. An election was held on
at which the owners of the property within the CFD voted to
authori~e $ of ad valorem tax bonds to be issued over time by the
CFD tofinance the acquisition of public infrastructure including but not limited to, roadway,
parks and landscaping improvements. The public infrastructure will be dedicated, as
appropriate, to the Town after acquisition of such public infrastructure by the District, for
perpetual operation and maintenance.
WHAT WILL BE FINANCED?
The CFD has been established to finance approximately $
infrastructure within Saguaro Springs plus costs related to the financing.
in public
BENEFITS TO RESIDENTS
The initial bond issue by the CFD will benefit all residents within Saguaro Springs by
providing for improvements to
This benefit was taken into account by the developer of Saguaro Springs in connection
with establishing the price of the lot on which your home was built. Each resident of the
CFD will participate in the repayment of the bonds in the form of an addition to his or her
Maranafrwin Peaks Development Agreement
10798
714
DRAFT #7.0 -- 4/9/98
annual property tax bill. This added tax is currently deductible for the purpose of
calculating federal and state income taxes.
PROPERTY OWNERS' TAX LIABILITY
The obligation to retire the bonds will become the responsibility of any property owner in
the CFD through the payment of property taxes collected by the Pima County Treasurer
with all other property tax payments. Beginning in the fiscal year 1998/99, the CFD will
cause to be levied a per secondary assessed valuation tax
rate; to provide for repayment of the bonds and to provide
for the payment of certain administrative and maintenance expenses associates with the
CFD and its improvements. Based upon a residential market value of $1 00,000, this would
result in an additional annual tax liability of approximately , or per month.
The tax rate of the CFD is not expected to exceed
assessed valuation.
per $100 of secondary
MaranafTwin Peaks Development Agreement
DRAFT #7.0 -- 4/9/98
10798
715
Exhibit H
TOWN OF MARANA, ARIZONA
POLICY GUIDELINES AND APPLICATION PROCEDURES
FOR THE ESTABLISHMENT OF
COMMUNITY FACILITIES DISTRICTS
In order to secure for the Town of Marana, Arizona (the "Town") the benefits of the
Community Facilities Act (the "Act") enacted by the Arizona Legislature in 1988 and to
promote the best interests of the Town, the following Policy Guidelines and Application
Procedures have been adopted by the Town Council.
Community facilities districts (the "CFD") provide a funding mechanism to finance
construction, operation, and maintenance of public infrastructure within the boundaries of
the CFD, and to better enable the Town to provide municipal services within the
boundaries of the CFD. The Town Council recognizes the ability of the CFD to permit the
construction of infrastructure that might otherwise not be constructed. It is for these
reasons that the Town Council has established these Policy Guidelines and Application
Procedures.
Considering that the establishment of a CFD is the legal equivalent of the
establishment of an entirely new municipal entity within the boundaries of the Town, the
Town Council believes that the formation of the CFD should be entered into carefully, to
ensure its lasting success.
ARTICLE 1.
General Policies
1.1. CFDs should be utilized primarily in connection with the financing of
infrastructure for development of residential projects, master planned
communities or projects which include resort hotels or substantial
commercial development.
1.2. Priority should be given to CFDs that provide an enhanced level of public
infrastructure amenities and/or municipal services. Public Improvements
financed by a CFD should be in conformance with the Town's General Plan
in order to encourage orderly growth and development.
1.3. All costs incurred by the Town and the CFD in connection with the CFD
application, formation and administration and operation expenses
appurtenant thereto, will be paid by the applicant/landowner through
advance payments as provided herein. Payment shall include payment for
services rendered by Town and CFD staff as well as services rendered by
outside consultants who may be retained by the Town or CFD, including but
not limited to bond counsel, financial advisors, engineers and appraisers. If
the Town or CFD uses outside consultants as "staff," such as attorneys or
engineers, those consultants will also be paid their customary rate for
services. If authorized by the CFD board, exercising its sole discretion, all
or part of such costs may be paid by a CFD tax levy or reimbursed to the
CFD Policy Guidelines & Application Procedures
Adopted 5/21/97 Resolution No. 97-42
Town of Marana, Arizona
1079d
7\6
developer/landowner from a CFD tax levy, CFD assessment, CFD revenues
or CFD bond proceeds provided such reimbursement is in conformance with
federal law, state law and these guidelines.
1.4. The Town will encourage an area to be governed by as few CFDs as
possible, and a preference will be given to one master CFD. This policy is
adopted to provide ease of administration and the largest tax/revenue base
possible. The decision to form a CFD shall be a decision of the Town
Council exercised in its sole and absolute discretion.
1.5. Unless otherwise agreed to by the Town, the CFD will be governed by a
board of directors comprised of the members of the Town Council. The day-
to-day responsibilities of the CFD will be performed, pursuant to a contract
by outside personnel or by the Town staff. For any CFD over 600 acres, the
Town Council, in its sole discretion, may provide that the CFD board may be
totally comprised of persons other than members of the Town Council, if
adequate safeguards and controls are in place, as may be acceptable to the
Town, to ensure the soundness of any CFD financing program, as well as
the adequacy and legality of the legal proceedings and disclosure
documents in connection with any financing. Advisory committees may, at
the sole option of the CFD board, be utilized.
1.6. Unless otherwise agreed to by the Town, the CFD must be self-supporting
from the standpoints of financing, operations and maintenance and no Town
funds will be used for CFD purposes. Notwithstanding anything contained
herein, neither the property, the full faith and credit, nor the taxing power of
the Town shall be pledged to the payment of any CFD obligation or
indebtedness.
1.7. The CFD board will determine, in its sole and absolute discretion, the
amount, timing and form of financing to be used by a CFD after review of the
project feasibility report.
1.8. The CFD will construct all improvements utilizing public bidding procedures.
1.9. The CFD will not use bond proceeds or other CFD funds to purchase public
rights-of-way or other real property to be used for public infrastructure
improvements, if such real property would be required to be dedicated and
conveyed to the Town by the developer/landowner upon development of the
developer's/Iandowner's property.
1.10. Unless otherwise agreed to by the Town, all costs of administration and
operation of the CFD and the operation and maintenance of public
infrastructure in the CFD shall be the responsibility of the CFD, the
developer/landowner, applicable homeowners' associations, or any
combination of the foregoing, as may be acceptable to the Town and the
CFD.
1.11. These Policy Guidelines and Application Procedures may be modified by
experience and special circumstances. Any applicant will be given the
CFD Policy Guidelines & Application Procedures
Adopted 5/21/97 Resolution No. 97-42
Town of Marana, Arizona
10798
717
,',
opportunity to propose alternative approaches to those provided herein, with
the understanding that concerns of the Town must be adequately addressed
before the staff of the Town will recommend approval of a CFD to the Town
Council.
ARTICLE 2.
Content of Application
The application shall contain the following:
2.1. A description of the proposed CFD including a legal description of its
boundaries and identity and addresses of all persons or entities with any
interest in the property, and names and addresses of any qualified electors
located within the proposed boundaries. A current title report and a
certificate from the county elections department shall be submitted as
evidence of the names of persons with any interest in the land and qualified
electors respectively. The description must contain an analysis of the
appropriateness of the CFD boundaries.
2.2. A detailed description of the types of public infrastructure to be financed by
the CFD, including the estimated construction or acquisition costs of the
public infrastructure and the annual operation and maintenance costs of the
public infrastructure and the governmental approvals that will be required for
bot the public and private improvements to be constructed and operated.
2.3. A proposed project schedule for commencement and completion of (a) the
public infrastructure and (b) the private development.
2.4. A financing plan for the public infrastructure, including both capital and
operating/maintenance costs.
2.5. A financial feasibility study for the entire project (or such phases of the
project that are expected to be constructed within five (5) years of
submission of the Application) covering both the public infrastructure and the
private development. This should include:
An analysis of how the proposed debt financing, operation and maintenance
costs, user charges and other CFD costs will be allocated and what will be
the impact to the ultimate end users of the property, specifically projected
property taxes and property tax rates, special assessments, fees, charges
and any other costs that would be borne by property in the CFD. The
analysis should also address the impact these costs will have on the
marketability of the private development and a comparison of proposed tax
rates or charges within the proposed CFD contrasted with the tax rates and
charges within the proposed CFD contrasted to the tax rates and changes
in adjoining and similar areas outside of the proposed CFD.
A financing plan for the private development in the CFD.
A market absorption study for the private development in the CFD, prepared
by an independent consultant acceptable to the Town. Such study shall
a.
b.
c.
Town of Marana, Arizona
CFD Policy Guidelines & Application Procedures
Adopted 5/21/97 Resolution No. 97-42
\0798
718
2.6.
2.7.
2.8.
2.9.
2.10.
...',
3.1.
3.2.
include estimates of the revenue to be generated by the development and
an estimate of the ability of the market to absorb the development as well as
a market absorption calendar for the private development.
A description of the proposed equity contribution from the
applicant/landowner and a calendar showing the timing of such equity
contribution.
A description of the applicant's professional experience and evidence
demonstrating its financial capacity (including financial statements) to
undertake the development associated with the public infrastructure and the
private development.
A disclosure form which will be used to explain the expected and possible
tax, assessment and other financial burdens of the CFD to prospective CFD
landowners. Upon each sale of property in the CFD, the
developer/landowner shall file with the Town a receipt that acknowledges the
purchaser's receipt of the disclosure form. (Landowners/developers are
required to describe in their promotional material the financial and other
relative impacts on the development being included in a CFD.)
An operating plan for the CFD, Le., what functions the CFD would provide
and how the operation and maintenance of the infrastructure and all other
services in the CFD would be provided.
A description of how the proposed CFD meets the existing development
objectives of the Town, including the degree to which the CFD is consistent
with the goals of the Town's General Plan for promoting orderly
development, consistent with growth management policies and zoning
requirements and the degree to which the land use plan for the CFD is
consistent with the Town's General Plan Map for the area.
ARTICLE 3.
Application Procedures
Ten (10) copies of the application for the formation of a CFD shall be
submitted to the Finance Director of the Town who will coordinate an
interdepartmental analysis of each application.
At the time of submission of the application, the applicant shall pay a non-
refundable application fee of $2,500.00, and shall deposit an additional
$5,000.00 as a deposit on account to be applied by the Town in its sole
discretion to the costs incurred in connection with the processing of the
application, the formation or administration of the CFD. When such
$5,000.00 (and each subsequent $5,000.00 amount hereinafter described)
is expended, an accounting will be made to the applicant for all costs
incurred by the Town and an additional $5,000.00 will be requested and
must be paid forthwith.
CFD Policy Guidelines & Application Procedures
Adopted 5/21/97 Resolution No. 97-42
Town of Marana, Arizona
\0798
719
3.3.
3.4.
3.5.
3.6.
3.7.
3.8.
....'.
4.1.
If the Town Council approves the formation of a CFD and there are existing
agreements with developers/landowners for the provision of infrastructure
proposed to be furnished by the CFD then those agreements will be deemed
amended to reflect the agreements and conditions pertaining to the CFD.
The amendments will reflect that such infrastructure improvements will be
provided (including by acquisition) by either the developer/landowner or the
CFD.
After the application fee and deposit are submitted, the Finance Director
shall arrange an pre-application conference with the appropriate Town staff,
forthe purpose of reviewing the application for conformity with Town policies.
If, following the pre-application conference or any other time during the
application process Town staff requests additional information, the applicant
shall provide any and all supplemental information requested.
After analysis of an application as supplemented, Town staff, under the
direction of the Finance Officer, may prepare a report including
recommendations relating to the CFD and an analysis of the impact of the
formation of the CFD and its effects on the Town. This report may provide
a recommended disposition of the application and any additional
requirements that will be placed on the developer/landowner and the CFD.
If all costs billed or available to the Town have been paid by the applicant by
a date at least seven (7) days prior to the date of the meeting of the council
at which the application is to be considered and if the application meets the
qualifications provided herein, the application, along with any report and
recommendations by Town staff, will be forwarded to the Town Council.
If the Town Council approves an application for formation of a CFD, the
applying developer/landowner and the staff of the Town shall coordinate a
schedule of events for formation of the CFD and shall negotiate an
appropriate agreement between the Town and the developer/landowner
which shall be entered into prior to formation of the CFD, which shall
incorporate the requirements of any report, recommendations of the Town
staff relating to such CFD, the requirements of these policy guidelines and
any other restrictions, provisions and agreements required by the Town.
ARTICLE 4.
CFD Operations and Debt Financing
Upon formation of a CFD the developer/landowner shall deposit with the
CFD a non-refundable administrative expense fee in the amount of
$5,000.00. The administrative expense fee shall be applied by the CFD to
the costs and expenses incurred in connection with the formation, review of
any feasibility study, election costs, administration, operation and
maintenance of the CFD or its public improvements. From time to time, upon
depletion of the administrative expense fee, the CFD may request, and the
developer/landowner shall promptly deposit with the CFD, additional
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$5,000.00 deposits to be applied to the purposes contemplated in this
Section 4.1 .
4.2. In order to provide for the CFD to be self-supporting for its administrative,
operation and maintenance expenses the Town and the CFD, unless
otherwise agreed, will require the imposition of a $.30 per 100 of assessed
value ad valorem tax upon the CFD taxable property. Failure to impose such
tax, will relieve the Town and the CFD from undertaking any obligations or
operations.
4.3. In connection with any request for debt financing, applicant shall provide a
current appraisal of the fair cash market value of the property within the
proposed CFD which is to be taxed or assessed, prepared by a person who
is designated as a Member Appraisal Institute ("MAl") and a certified general
real estate appraiser (such person hereafter referred to as an "MAl
Appraiser"), such appraisal to be in form and substance acceptable to the
Town, in its sole discretion. Generally, the appraisal shall be based on the
wholesale, bulk sale of the property in the CFD.
4.4. The amount of debt of a CFD may not have any substantial direct or indirect
negative impacts on the debt or financing capabilities of the Town, and
second, that the debt imposed on the CFD not impose an unreasonable
financial burden on future CFD residents.
4.5. General obligation bonds of the CFD are secured by an ad valorem tax on
all taxable property located within the CFD. An applicant for general
obligation bonds should describe in each project feasibility report the
following:
a. The current direct and overlapping tax and assessment burden on the
taxable property that is proposed to be taxed and the full cash value and
assessed valuation of the taxable property as shown on the most recent
assessment roll.
b. The amount and timing of CFD general obligation bonds to be issued.
c. The expected market absorption of development within the CFD.
d. The effect of the CFD bond issuance on CFD tax rates, calculated as of the
beginning, midway through and at the end of the market absorption period
or based on the phasing of the project to be financed, as applicable.
e. Estimated savings, if any, to residents in the form of reduced sales prices
which are projected to result from CFD financing.
f. Any plan for subsidizing CFD tax rates.
g. Whether the bonds will be publicly offered or privately placed. Publicly
offered bonds must be rated in one of the four highest investment grade
ratings from either Standard & Poor's Corporation, Moody's Investors
Services, Inc., or other nationally recognized bond rating services. Privately
placed bonds need not be rated; however, the purchases of such general
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4.6.
.....
a.
obligation bonds must be "qualified institutional buyers" (as such term is
defined in Rule 144A of the Securities Exchange Commission) and must
agree not to resell the bonds except to "qualified institutional buyers" in a
private placement, provided, however, that a purchaser of general obligation
bonds in a private placement may sell the bonds in a public offering if the
CFD board approves the public sale and the bonds have an investment
grade rating.
Revenue bonds shall be payable from a CFD revenue source. An applicant
for revenue bonds must describe in each project feasibility report, the
following:
The current direct and overlapping tax and assessment burdens on the
taxable property within the CFD and the full cash value and assessed
valuation of that taxable property as shown on the most recent assessment
roll.
The revenue source from which bonds will be payable. The Town reserves
the right to require the applicant to produce such independently prepared
feasibility studies or reports as it deems necessary to confirm the amount
and availability of revenues.
The expected market absorption of development within the CFD.
The amount and timing of CFD revenue bonds to be issued.
The financial impact of the proposed issue(s) on prospective residents.
Whether the bonds will be publicly offered or privately placed. Publicly
offered revenue bonds must be rated in one of the four highest investment
grade ratings from either Standard & Poor's Corporation, Moody's Investors
Service, Inc., or other nationally recognized bond rating services. Privately
place bonds need not be rated; however, the purchasers of such revenue
bonds must be "qualified institutional buyers" and must agree not to sell the
bonds except to "qualified institutional buyers" in a private placement,
provided, however, that a purchaser of a revenue bond in a private
placement may sell the bonds in a public offering if the CFD board approves
the public sale and the bonds have an investment grade rating.
Assessment bonds shall be secured by first lien (subject only to the lien for
general taxes and prior special assessments) on the property benefitted.
Applicants for assessment bonds should describe in the application and in
each project feasibility report, the following:
The current direct and overlapping tax and assessment burdens on real
property to comprise the CFD and the full cash value and assessed valuation
of that property as shown on the most recent assessment roll.
The amount and timing of CFD assessment bonds to be issued.
The expected market absorption of development within the CFD.
b.
c.
d.
e.
f.
4.7.
a.
b.
c.
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d. The assessment burden to be placed on prospective residents.
e. Whether the assessment bonds will be publicly offered or privately placed.
Publicly offered assessment bonds must be rated in one of the four highest
investment grade ratings from either Standard & Poor's Corporation,
Moody's Investors Service, Inc., or other nationally recognized bond rating
services or in an unrated public offering, an appraisal of the land to be
encumbered, prepared by an MAl Appraiser and in form and substance
acceptable to the CFD board, in its sole discretion, shall indicate a land value
(prior to any private or public improvements being installed) to debt ratio of
at least 6 to 1 prior to the issuance of debt. Privately placed bonds need not
be rated; however the purchasers of such assessment bonds must be
"qualified institutional buyers" who must agree to hold the bonds for their own
account or agree not to sell the bonds except to "qualified institutional
buyers." Further, in connection with the sale of unrated privately placed
assessment bonds, the CFD board must have received an appraisal of the
land to be encumbered, prepared by an MAl Appraiser and in form and
substance acceptable to the Town, in its sole discretion, indicating a land
value (prior to any improvements being installed) to debt ratio of at least 4 to
1 as of a date prior to the issuance of debt.
4.8. Notwithstanding the restrictions pertaining to public sales and private
placements of the bonds set forth in this Article 4, the restrictions may be
modified if other financing structures are presented which, in the sole
discretion of the CFD board, provide other means to address CFD concerns.
ARTICLE 5.
5.1.
~.
5.2.
5.3.
5.4.
5.5.
Financing Considerations
The applicant or developer/landowner shall provide at least $0.25 in
infrastructure or community improvements for each $1.00 of debt to be
issued by a CFD to finance public infrastructure purposes. If agreed to by
the CFD, prior infrastructure and community improvements constructed or
acquired by the applicant or the developer/landowner and benefitting the
property within the CFD may be included in calculating the applicant's or
developer/landowner's compliance with this Section 5.1.
If allowed by law, all bond issues shall include a debt service reserve fund
in an amount acceptable to the CFD board.
Privately placed bonds shall have minimum authorized denominations of
$100,000.
A general obligation bond authorization for a CFD shall expire no later than
seven (7) years from the date of voter authorization.
The applicant, developer/landowner (or such other third party acceptable to
the Town and CFD), for any CFD bonds, shall indemnify the Town and the
CFD and their agents and employees and shall hold the Town and the CFD
and their agents and employees harmless for, from and against any and all
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liabilities, claims, costs and expenses, including attorneys' fees, incurred in
any challenge or proceeding to the formation, operation, administration of the
CFD, the offer and sale of CFD bonds, the levying by the CFD of any tax,
assessment or charge and the operation and maintenance of public
infrastructure financed or owned by the CFD.
5.6. Unless otherwise provided to the Town pursuant to other requirements, prior
to CFD financing and acquisition by the CFD or Town, the CFD or Town will
require an independent environmental report or assessment of any real
property which will be dedicated to or otherwise owned, leased or operated
by the Town or the CFD and a proposed form or indemnity agreement with
respect to all environmental law liability.
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