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HomeMy WebLinkAboutResolution 2002-063 pre-annexation and development agreement with tucson's wolfe gang, llcRESOLUTION NO. · Scrivener ~ s PI?se be advised that ~Resolution No. 2002-38, passed on March 19=, had been assigned to another.document passed on April 2, 2002, and that the April. 2, 2002 document has been re'numbered Resolution No, 2002*63 to correct the dupHcation..Neither resolution required text changes or recOrdation by thePima County Recorder. MARANA RESOLUTION NO. 2002-63 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING PRE-ANNEXATION AND DEVELOPMENT AGREEMENTS BETWEEN THE TOWN OF MARANA AND TUCSON'S WOLFE GANG, L.L.C. WHEREAS, pursuant to A.R.S. § 9-500.05, the Town is empowered to enter into development agr~nnents relating to property within the municipality and the Marana Town Council has reviewed the Pre-annexation and Development Agreement between the Town and Tucson's Wolfe Gang, L.L.C., attached hereto as Exhibit "A" and incorporated herein by this reference; and WHEREAS, the proposed Pre-annexation and Development Agreement provides for various conditions and agreements between the Town and Tucson's Wolfe Gang, L.L.C. relating to the property to be annexed relating to, among other things, the provisions and expansion of infrastructure; and WHEREAS, it has been determined by the Marana Town Council that it would be in the best interest of the Town, for continued development of the Town, to enter into this pre-annexation and development agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL of THE TOWN OF MARANA, ARIZONA, as follows: Section 1. The Pre-annexation and Development Agreement attached hereto as Exhibit "A" is hereby approved. Section 2. The Mayor is hereby empowered and directed to execute the attached Pre- annexation and Development Agreement on behalf of the Town of Marana. M~, nr~o~ w~ut~ ~o. 2002-63 Page 1 of 2 PASSED AND ADOPTED by the Mayor and Council of the this 19t~ day of March, 2002. ATTEST: APPROVED AS TO FORM: Town Attorney and not personally a, Arizona, Ma-yor-fil~B/~r'~'T TON, JR.. MaranaRe~ohttion No. 2002.65 Page 2 of 2 F. ANN RODRIGU~ RECORDER RECORDED BY: I. DEPUTY RECORDER 7864 PE3 DO~T: 11797 P~ 2202 NO. OF PAGES: 11 SEQUENCE: 20020910738 05/10/2002 AG 16:40 SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 MAIL AMOUNT PAID $ 11.00 TOWN OF MARANA PRE-ANNEXATION & DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF MARANA AND TUCSON'S WOLFE GANG, L.L.C. THIS PRE-ANNEXATION AND DEVELOPMENT AGREEMENT WAS ORIGINALLY RECORDED ON APRIL 12, 2002, IN DOCKET 11777, PAGES 4390 THROUGH 4397. EXHIBIT A WAS MISTAKENLY OMITTED AT THAT TIME AND IS BEING ADDED TO THE ORIGINAL AGREEMENT AS FOLLOWS: i = :1 r .,." , , -" EXHIBIT A: n , , -==- WAS: OMITTED IS: LEGAL DESCRIPTION EXHIBIT A CONTINUED: WAS: OMITTED IS: PROPERTY MAP ~I F. ANN RODRIGU~ RECORDER RECORDED BY: 1 DEPUTY RECORDER > , 2403 PE2 ,""~ SMARA ./ TOWN~RANA A~: TOWN CLERK./// //13251 N LON 1\DAMS RD /" '", .,,-~ MARANA AZ 85653 When Recorded Return To: Daniel J. Hochuli, Esq. HOCHULI & BENAVIDEZ, P. C. 220 East Wetmore Road, Suite 110 Tucson, AZ 8S705 DO~T: 11777 Pl 4390 NO. OF PAGES: 8 SEQUENCE: 20020711082 Q~j.l:2/2bo2 AG -- 16:43 MAIL AMOUNT PAID $ 9.50 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA AND TUCSON'S WOLFE GANG, L.L.c. Maranarrucson's Wolfe Gang. L.L.C. Preannexation & Development Agreement Page 1 of 8 1 ../ ," ....... L .->- o <~ PRE-ANNEXA TION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and Tucson's Wolfe Gang, L.L.c., an Arizona limited liability company ("Wolfe Gang"). Whereas, Wolfe Gang is the owner of the property located within Pima County, Arizona legally described on Exhibit A (the "Property"). Wolfe Gang and the Town desire that the Property be mmexed into the corporate limits of the Town and become an integral part ofthe Town. 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: Annexation. The Town has initiated the annexation process by filing a blank annexation petition with Pima County Recorder consistent with the requirements of A.R. S. S 9-471 and all other application laws, ordinances and rules (the "Annexation Laws"), to annex the Property into the Town. The Town has timely published, mailed and posted the required notices and held a public hearing, as required under the Annexation Laws in connection with the annexation of the Property into the Town. Following the public hearing, Wolfe Gang shall sign and deliver annexation petitions for the Property. It is understood by the parties that the Town Council retains the discretion to approve or deny the annexation ordinance. No Extra Development Fees. In order to induce Wolfe Gang to enter into this Agreement, the Town agrees that the Town shall not charge Wolfe Gang any development fees, impact fees or growth fees pursuant to A.R.S. S 9-463.05 or otherwise (hereinafter collectively "Development Fees") for residential (not lodging) development of any portion of the Property that are greater than or in addition to the Development Fees actually imposed by the Town elsewhere within its corporate limits for comparable projects or developments. Development Fees as defined herein are not intended to include any taxes, administrative fees, inspection fees, review fees, or other fees charged throughout the Town, and are intended to include only those fees which are assessed against development in order to pay for capital improvements to infrastructure as contemplated by A.R.S. S 9-463.05. Over-Sizing of Utilities. The Town and Wolfe Gang agree that: 2 3 3.1 3.2 Except as provided in subsection 3.2 below, in no event shall the Town require Wolfe Gang or any of its affiliates to over size any facilities other than Town owned or operated public utility services (i.e. water and sewer services) (hereinafter "Public Utilities") so as to be available to serve other projects or properties unless the Town pays or causes a third party to pay the greater of (i) the proportionate share of the entire cost of planning, designing, engineering, permitting and constructing the utility line or other facility based on projected use, or (ii) the oversizing cost. The third party payment must be remitted on or before any payments by Wolfe Gang are due. In the event that Wolfe Gang submits a development request to the Town for the Property, the Town may require Wolfe Gang or any of its affiliates to oversize any Public Utilities so as to be available to serve such public utilities to other projects or properties in the vicinity of the Property. As other parties connect to said Public Utilities, such parties shall pay their respective projected share proportionate to their l 'J> =- o 4 \1arana/Tuc.:son's Wolfe Gang, L.L.C. Preannexation & Development Agreement Page 2 of 8 use of the Public Facilities, and Wolfe Gang shall be reimbursed as set forth in the applicable Service Agreement for such Public Utilities. 4 Public Improvements. As soon as reasonably possible, and at no cost or expense to Wolfe Gang, the Town shall: 4.1 Enter into license agreements for the placement of directional signs to the Wolfe Gang property in the public right-of-way, so long as such signage meets Town specifications and regulations. 4.2 Work with Pima County and any developer along Wade Road to fund improvements to Wade Road, including dust control and, eventually, paving which will be done at no cost or assessment to the Wolfe Gang Property, unless such improvements are being funded by an adopted development impact fee. 4.3 Attempt to procure funding and assistance from Pima County, Arizona for a sewer main line extension to the Property. 5 Ori!:!inal Z<min!:!. 5.4 5.1 The land uses and activities that are lawfully conducted on the Property in Pima County prior to annexation translate to the Resort and Recreation (RR) Zone and the R-144 Residential (R-144) Zone in the Town's Land Use and Development Code. The historical use of the of the Property as a guest ranch with lodging and related ancillary activities is a legal nonconforming use under the existing Suburban Ranch (SR) Zone in Pima County. The annexation laws require the Town to translate the zoning for the Property from the lawful uses, activities and zoning in Pima County to Town zoning upon annexation without permitting densities or uses that are greater than those permitted in Pima County prior to annexation. In order to establish original Town zoning which is consistent with the current lawful uses of the Property, and which minimizes non-conforming uses, upon annexation the Town shall impose the Recreation and Resort (RR) Zone and the R-144 Residential (R-144) Zone on the Property. In the event that a court of competent jurisdiction determines that the dual zoning designations set forth in subsection 5.1 above is not permitted by law, Wolfe Gang may apply forrezoning of the Property to RR and R-144 under the Town's Land Use and Development Code, and if the Town does not grant such rezoning, the Town shall be in breach of this Agreement and Wolfe Gang shall be entitled to damages as well as such other relief and remedies as are available at law or in equity. To the extent the uses and activities conducted on the Property in Pima County prior to annexation are authorized by law, the Town recognizes such lawful uses as legal nonconforming uses, and agrees that such uses may be continued as a legal non- conforming uses after the Property is annexed into the corporate, jurisdictional and geographic limits of the Town. The noise and sound levels permitted or exempted in Pima County shall be allowed on the Property until the Town adopts a noise ordinance, at which time Wolfe Gang will comply with such ordinance. Notwithstanding the provisions of such noise ordinance, Wolfe Gang shall be permitted maximum average levels for amplified music of at least 55 decibels from 7:00 a.m to 10:30 p.m, and 50 decibels from 1- -- ~.l I 1 q ? 5.2 5.3 Maranarrucson's Wolfe Gang. L.L.C. Preannexation & Development Agreement Page 3 of 8 10:30 p.m. to 7:00 a.m. Decibel limits will not apply to human voices that are not electronically amplified, and will be as measured at the property line. 6 Wells. The Town acknowledges that Wolfe Gang now provides water service to the Property by its own wells, and the Town covenants and agrees that Wolfe Gang will be permitted to continue to do so until such time as Wolfe Gang is unable to do so, or the Town acquires the Wolfe Gang water system for just compensation. 7 Signage. Notwithstanding anything to the contrary, Town agrees that all signage which exists at the time of execution of this Agreement will continue to be permitted as an existing permitted non-conforming signage. 8 Notices. All notices, filings, consents, approvals and other communications provided for in this Agreement or given in connection herewith shall be validly given, filed, made, delivered or served if in writing and delivered personally or by overnight carrier, or sent by United States first class (or registered or certified) mail, postage prepaid, addressed as follows: If to the Town: Mike Hein, Town Manager TOWN OF MARANA 13251 North Lon Adams Marana, AZ 85653 with a copy to: Daniel Hochuli, Esq. HOCHULI & BENAVIDEZ P.C. 220 East Wetmore Road Tucson, AZ 85705 If to Wolfe Gang: Mr. & Mrs. Craig Wolfe WOLFE GANG L.L.c. 810 South William Street Mt. Prospect, IL 60056 -/ with a copy to: Mr. & Mrs. Mark Wolfe LA TIERRA LINDA GUEST RANCH 7501 North Wade Road Tucson, AZ 85743 ;"} .L. n ;a r D 9 or to such other addresses as either party hereto may from time to time designate in writing and delivery in a like manner. Notices, filings, consents, approvals and communication given by personal delivery, or by overnight carrier, shall be deemed given, received and effective upon delivery, and if given by mail shall be deemed delivered forty-eight (48) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above. Hierarchy of Documents. In the event of a conflict or inconsistency, to the extent pennitted by law, this Agreement shall take precedence over the applicable ordinances, rules, regulations, permit requirements, development fees, other requirements, and/or official po licies of the Town. =: i Maranarrucson's Wolfe Gang. L.L.C. Preannexation & Development Agreement Page 4 of 8 10 Counterparts. This Agreement may he executed in two or more counterparts each of which shall be deemed an original, but all of which together 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. II Headings. The descriptive headings of the paragraphs of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. 12 Exhibits and Recitals. 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. The Recitals set forth at the beginning of this Agreement are incorporated herein and the parties hereby confIrm the accuracy thereof 13 Further Acts. Each of the parties hereto shall promptly 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. The parties agree that all conditions and contingencies set forth in this Agreement are critical In the development ofthe Property. 14 Time of Essence. Time is of the essence for each of the terms and provisions of this Agreement. 15 Inurement. This Agreement shall be binding upon and shall inure to the benefIt of the parties to this Agreement and their respective successors and assigns. Term. The term of this Agreement shall commence on the date and at the time an ordinance approving and adopting this Agreement is approved by the Town Council, and shall tenninate on the 25th anniversary of such date unless extended by mutual agreement of the parties. Termination of this Agreement shall not affect the zoning of the Property. No Partnerships; Third Parties. Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between Wolfe Gang and the Town. No tenn or provision of this Agreement is intended or shall be for the benefIt of any person, organization or entity not a party hereto, and no such other person, organization or entity shall have any right to cause of action hereunder. 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 understandings of the parties, oral or written, are superseded and merged into this Agreement. 19 Amendment. This Agreement may be amended only by a written amendment executed by the Town and Wolfe Gang. 20 Good Standing. Authority. Wolfe Gang represents and warrants to the Town that (a) Wolfe Gang is duly formed and validly existing under the laws of the State of Arizona and qualified to do business in the State of Arizona; and (b) the individual(s) executing this Agreement on behalf of Wolfe Gang are authorized to do so. The Town represents and warrants to Wolfe Gang that (i) the Town is a municipal corporation duly formed and validly existing under the laws of the State of Arizona, and (ii) the individual(s) executing this Agreement on behalf of the Town are authorized to do so. 16 i 17 ? 18 ."""" !i:::.= ..... .V1aranarrucson's Wolfe Gang, L.L.C. Preannex31ion & Development Agreement Page 5 of 8 21 Severability. If any portion of any provision of this Agreement is declared void or unenforceable, such portion shall be severed from this Agreement and the remainder of the provision and remainder of this Agreement shall remain in full force and effect. The parties acknowledge and agree that, although the parties believe that the terms and conditions contained in this Agreement do not constitute an impermissible restriction of the police power of the Town, and that it is their express intention that such terms and conditions be construed and applied as provided herein, to the fullest extent possible, it is their further intention that, to the extent any such term or condition is found to constitute an impermissible restriction ofthe police power of the Town) such term or condition shall be construed and applied in such lesser fashion as may be necessary to reserve to the Town all such power and authority that cannot be restricted by contract. 22 Significance of Court Orders. The parties agree that should a court determine it is not within the Town's discretion to translate zoning as provided herein, and in the event any court of competent jurisdiction enters a final order relating to the zoning, density, use, or other provisions of this Agreement and requires compliance with such final order, such order shall be binding on the parties and such compliance will not be a breach of the terms of this Agreement. Status Statements. Any party to this agreement (the "requesting party") may, at any time, and from time to time, deliver written notice to any other party requesting such other party (the "providing party") to provide in writing that, to the knowledge of the providing party, (a) this Agreement is in full force and effect and a binding obligation ofthe parties, (b) this Agreement has not been amended or modified either orally or in writing, and if so amended, identifying the amendments, and (c) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults (a "Status Statement"). A party receiving a request hereunder shall execute and return such Status Statement within twenty (20) days following the receipt thereof. The Town Manager or any Assistant Town Manager shall have the right to execute any Status Statement requested by Wolfe Gang hereunder. The Town shall have no liability for monetary damages to Wolfe Gang, and transferee or mortgagee, or any other person in connection with, resulting from or based upon the issuance of any Status Statement hereunder. 23 E ... ~ .i ? 2 24 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, and the parties consent to jurisdiction and venue in Pima County, Arizona. In particular, this Agreement is subject to the provisions of A.R.S. 9 38- 511. 8 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective on the date and at the time an ordinance approving and adopting this Agreement is approved by the Town Council of the Town of Marana. , ~ Maranarrucson's Wolfe Gang, L.L.C. Preannoxation & Development Agreement Page 6 0 f 8 Date: ?Y1 Y0~ ATTEST: APPROVED AS TO FORM AND AUTHORITY The forego ing Agreement has been reviewed by the Wldersigned attorney who has determined that it is in proper form and within the power and authority granted Wlder the laws of the State of Arizona to the Town of Marana. ~~ Attorney for Town of Marana .\1urunil/Tucson's Wolfe Gang. L.L.C. Prellnnt:xution & Development Agreement Page 7 of 8 TOWN OF MARANA, an Arizona municipal corporation C ..~aYor . i Date: Oft) ~\ ~~ TUCSON'S WOLFE GANG, L.L.C., an Arizona limited liability company By STATE OF ARIZONA ) ) ss County of Pima ) The foregoing instrument was acknowledged before mt"' S'. day of Itr"'-,L ,2002, by _fA-;-~ 1((4 vV 0 lFC the (l)1J,.",q R~~ofTucson's Wolfe Gang, L. L. c., an Arizona limited liability company, on behalf of said linuted liability company. 1/ \.. tVI.A.""/ l-../J~. Notary Public My Commission Expires: 7- (<s. e,', rw~~,,,,,,,,,\%w.p;,~_ f OFF'Ct,~\LSEAl $ ')0 f")' ~\ !:>>~ S. ..'" 4_.,c,'!""-"I).r-'.$0< . O,tM 11: " ';1""\'1""'" ._'" .r;'j l '$ :, ~~. ,i;~,,;:-, ' ,fJJ.f lUIN^",~ ".e,. ,..''1 ""'" '~\.:\'- i =;'1 : , -: , .. ~ '.\:"""... =7 :,": ""-'" MaranalTucson's Wolfe Gang, L.L.C. Preannexation & Development Agreement Page 8 of 8 EXH IBIT A LEGAL DESCRIPTiON TIERRA LINDA ANNEXATION TO THE TOWN OF MARANA PORTIONS OF SECTIONS 33 AND 34, TOWNSHIP 12 SOUTH, RANGE 12 EAST, GILA AND SALT RIVER MERIDIAN, PIMA COUNTY, ARIZONA, SAID PORTIONS BEING MORE P ARTICULARL Y DESCRIBED AS FOLLOWS: BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 34, SAID POINT BEING AN ANGLE POINT ON THE PRESENT MARANA TOWN LIMITS AS DESCRIBED IN TOWN OF MARANA ORDINANCE NUMBER 88.20; THENCE EASTERLY, ALONG THE EAST-WEST MID-SECTION LINE OF SAID SECTION 34 AND ALONG SAID MARANA TOWN LIMITS, TO THE SOUTHEAST CORNER OF THE WEST HALF OF THE NORTHWEST QUARTER OF SAID SECTION; THENCE EASTERLY, CONTINUING ALONG SAID EAST-WEST MID-SECTION LINE AND ALONG THE MARANA TOWN LIMITS AS DESCRIBED IN TOWN OF MARANA ORDINANCE NUMBER 87.11 TO THE NORTHEAST CORNER OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 34; THENCE SOUTHERLY, .AlONG THE EAST LINE OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 34 AND CONTINUING ALONG SAID MARANA TOWN LIMITS, A DISTANCE OF 264.00 FEET TO AN ANGLE POINT IN SAID MARANA TOWN LIMITS; THENCE SOUTHERLY, DEPARTING SAID MARANA TOWN LIMITS AND CONTINUING ALONG SAID EAST LINE TO THE SOUTHEAST CORNER OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 34; THENCE WESTERLY, ALONG THE SOUTH LINE OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF SAID SECTION 34, TO THE EAST RIGHT-OF-WAY LINE OF WADE ROAD, WHICH IS A LINE 30.00 FEET EASTERLY OF AND PARALLEL WITH THE WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 34; THENCE SOUTHERLY, ALONG SAID EAST RIGHT-OF-WAY LINE, TO AN INTERSECTION WITH THE EASTERLY PROLONGATION OF A LINE 1109.31 FEET NORTHERLY OF AND PARALLEL WIlli THE SOUTH LINE OF SAID SECTION 33; .r THENCE WESTERLY, ALONG SAID PROLONGATION AND PARALLEL LINE, TO THE WEST LINE OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 33; THENCE NORTHERLY, ALONG SAID WEST LINn TO THE NORTH LINE OF THE SOUTHEAST QUARTER OF SAID SECTION 33; THENCE EASTERLY, ALONG SAID NORTH LINE TO THE EAST QUARTER CORNER OF SAID SECTION 33 AND THE POINT OF BEGINNING. 2 :. L . . ..,:". ~. -..~ ~:':.d ,;}J~~7 ~ '~\.:~\ " ,,,.v.,,'itl ~. f\ '-" \U::\ \ . SCHLOE.'.1Mjj.} / i J ~.\ V'.9". ~:;/ .J ~)~~~}IIs~ MICHAEL L. SCHLOEMA.l\T, R.L.S. S:\J0BS\3S92\3S92907Il.EGAL\3S92.907.DOC LEGAL LOG NO. 293 Page 1. of 1 :/ V1 '" 5 :/ u ~. /C EXHIBIT A CONTINUED TlERRA LINDA ANNEXA TlON TO THE TOWN .OF MARANA PORTIONS OF SECTIONS 33 AND 34, TOWNSHIP 12 SOUTH, RANGE 12 EAST, GILA & SAL T RIVER MEIDIAN, PIMA COUNTY, ARIZONA. I I I I I ~ '-U ~r ~ ~~l '-U ~'''~ ~'-U~I~ Mi ~ I 3 3 : - ____..1._.. ~!R Q' ~I 0, ~ ::::1 VJ, ~I ~I I .-, o "0 " en '- .::::. '= ! x co I ~ NORTH I ,.. = '000' TOWN OF MARANA ORD. 88.01 .......... c C SOMBRERO I I I --j .=: .,..... L .. i :-:} oL LEGEND ~'.:.,. ~ ;:..-.~';'S-;""v':; .~;:~i~.-;/.,r. .-':':~'i/,,;' UM/iS AREA TO BE ANNEXED (4 TETRA TECH, INC. .... INFRASTRUCTURE SOUn-.W::ST GpO\;: .3.3 N. Stone. 7St" Floor Tucson, AZ 85701 (520) 62.3- 7gS0 DATE "AY 2001 JOB NO. J592.907 RECORDED BY: DEPUTY RECORDER 2403 PE2 · SF~.RA TOWN OF MAP. ANA ATTN: TOWN CLERK 13251 N L0N ADAMS RD YJd~NA AZ 85653 PAGE: 4390 NO. OF PAGES: 8 04/12/2002 MAIL AMOUIN'T PAID $ 9.50 When Recorded Return To: Daniel J. Hochuli, Esq. HOCHULI & BENAVIDEZ, P. C. 220 East Wetmore Road, Suite ] 10 Tucson, AZ 8S705 PRE-A. NNEXATION AND DEVELOPMENT AGREEMENT TOWN OF M*RANA, AaIZONA A~'D TUCSON'S WOLFE GANG, L.L.C. Marana/Tucson's Wolfe G,~I:. L.L.C. Prcannexstlon & Dcvclopmcnz Allr~cmcnl Page 1 of 8 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT T~s AGREEMENT is entered into by the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and Tucson's Wolfe Gang, L.L.C., an Arizona limited liability company C\¥ol fe Gang"). \Vhereas, Wolfe Gang is the owner of the property located within Pima County, Ar/zona legally described on Exhibit A (the "Property"). Wolfe Gang and the Town desire that the Property be annexed into the corporate limits of the Town and become an integral pa.rt of the Town. Now, T~-tER~-~:OR~-, in consideration of the foregoing pren'fises and the mutual promises and agreements set forth herein, the parties hereto state, confin'n and agree as follows: Annexation. The Town has initiated the annexation process by filing a blank annexation petition with Pima County Recorder consistent with the requirements ofA.R.S. § 9-471 and all other application laws, ordinances and rules'(the "Annexation Laws"), to annex the Property into the Town. The Town has timely published, mailed and posted the required notices and held a public hearing, as required under the Annexation Laws in connection with the annexation of the Property into the Town. Following the public hearing, Wolfe Gang shall sign and deliver annexation petitions for the Property. It is understood by the parties that the Town Council retains the discretion to approve or deny the annexation ordinance. No Extra Development Fees. In order to induce Wolfe Gang to enter into this Agreement, the Town a~ees that the Town shall not charge Wolfe Gang any development fees, knpact fees or growth fees pursuant to A.R.S. § 9-463.05 or otherwise (hereinafter collectively "Development Fees") for residential (not lodging) development of any portion of the Property that are greater than or in addition to the Development Fees actually imposed by the Town elsewhere within its corporate limits for comparable projects or developments. Development Fees as defined herein are not intended to include any taxes, admin/strative fees, inspection fees, review fees, or other fees charged throughout the Town, and are intended to include only those fees which are assessed against development in order to pay for capital improvements to infi-astmcture as contemplated by A.R.S. § 9-463.05. Over-Sizing of Utilities. The Town and Wolfe Gang agree that: 3.1 Except as provided in subsection 3.2 below, in no event shall the Town require Wolfe Gang or any of its affiliates to over size any facilities other than Town owmed or operated public utility serv/ces (i.e. water and sewer sen, ices) (hereinafter "Public Utilities") so as to be available to serve other projects or properties unless the Town pays or causes a third party to pay the greater of (i) the propo~ionate share of the entire cost of planning, desiring, en~neering, permitting and constructing the utility line or other facility based on projected use, or (ii) the oversizing cost. The third parry payment must be remitted on or before any payments by Wolfe Gang are due. 3.2 In the event that Wolfe Gang submits a development request to the To'am for the Property, the Town may require Wolfe Gang or any of its affiliates to oversize any Public Utilities so as to be ax,affable to serve such public utilities to other projects or properties in the vicinity of the Property. As other parties connect to said Public Utilities, such parties shall pay their respective projected share proportionate to their 4 Marana,'l'ucr, on's Wolfe O~ng,. L.L.C. 2 of 8 use of the Public Facilities, and Wolfe Gang shall be reimbursed as set forth in the applicable Se,,-vice Agreement for such Public Utilities. Public Improvements. As soon as reasonably possible, and at no cost or expense Io Wolfe Gang, the Town shall: 4.1 Enter into license agreements for the placement of directional signs to the Wolfe Gang property in the public right-of-way, so long as such signage lneets Town specifications and regulations. 4.2 Work with Pima County and any developer along Wade Road to fund hnprovements to Wade Road, including dust control and, eventually, paving which will be done at no cost or assessment to the Wolfe Gang Property, unless such improvements are being funded by an adopted development impact fee. 4.3 Attempt to procure funding and assistance fi.om Pima County, Arizona for a sewer main line extension to the Property. Original Zoning. 5.1 The land uses and activities that are lawfully conducted on the Property in Pima County prior to annexation translate to the Resort and Recreation (RR) Zone and the R-144 Residential (R-144) Zone in the Town's Land Use and Development Code. The historical use of the of the Property as a guest ranch with lodging and related ancillary activities is a legal nonconforming use under the existing Suburban Ranch (SR) Zone in Pima County. The annexation laws require the Town to translate the zoning for the Property from the lawful uses, activities and zoning in Pima County to Town zoning upon annexation without permitting densities or uses that are greater than those perm/ned in Pima County prior to annexation. In order to establish original Town zoning wNch is consistent with the current lawful uses of the Property, and which minimizes non-conforming uses, upon annexation the Town shall impose the Recreation and Resort (RR) Zone and the K-144 Residential (K-144) Zone on the Property. 5.2 In the event that a court of competent jurisdiction determines that the dual zoning desi~ations set forth in subsection 5.1 above is not permitted by law, Wolfe Gang ma3' apply for rezoning of the Property to P,Z and K-144 under the Town's Land Use and Development Code, and if the Town does not grant such rezoning, the Town shall be in breach of this A~eement and Wolfe Gang shall be entitled to damages as well as such other relief and remedies as are available at law or in equity. 5.3 To the extent the uses and actix4ties conducted on the Property in Pirrm County prior to annexation are authorized by law, the Town recognizes such lawful uses as legal nonconforming uses, and a~ees that such uses may be continued as a legal non- conforming uses after the Property is annexed into the corporate, jurisdictional and geographic limi~ of the Town. 5.4 The noise and sound levels permitted or exempted in Pima Count3' shall be allowed on the Property until the Town adopts a noise ordinance, at which time Wolfe Gang will comply with such ordinance. Notwithstanding the provisions of such noise ordinance, Wolfe Gang shall be pertained maximum average levels for amplified music of at le.~t 55 decibels fi.om 7:00 a.m. to 10:30 p.m., and 50 decibeis fi.om 4 Marana/Tug~on'$ Wolfe Gang, L.I...C. 3 of 8 10:30 p.m. lo 7:00 a.m. Decibel limits will not apply lo hmnan voices that are not electronically amplified, and will be as measured at the property tine. 3X/ells. The Town ac'knowledges that Wolfe Gang now provides water service to the Property by its own wells, and the Town covenants and agrees that Wolfe Gang will be permitted to continue to do so until such thne as Wolfe Gang is unable to do so, or the Town acquires the Wolfe Gang water system for just compensation. Sir, naoe. Notwithstanding anything to the contrary, Town agrees that all signage which exists at the ti,ne of execution of this Agreement will continue to be permitted as an existing pen'nitted non-conforming signage. Notices. All notices, filings, consents, approvals and other communications provided for in this Agreement or given in connection herewith shall be validly given, filed, n~de, delivered or served if in writing and delivered personally or by overnight carrier, or sent by United States first class (or registered or certifred) mail, postage prepaid, addressed as follows: lfto the Town: Mike Hein, Town Manager Town oF ]VIARANA 13251 North Lon Adams Marana, AZ 85653 with a copy to: Daniel Hochuli, Esq. HOCHULI & BENAV]DEZ P.C. ' 220 East Wetmore Road Tucson, AZ 85705 If to Wolfe Gang: Mr. & Mrs. Craig Wolfe WOLFE GANG L.L.C. 810 South V~511iam Street Mt. Prospect, IL 60056 with a copy to: Mr. & Mrs. Mark Wolfe LA TIEKRA LINDA GUEST ~ANCH 7501 North grade Road Tucson, AZ 85743 or to such other addresses as either party hereto may from time to time desi_maate in writing and delivery in a like manner. Notices, filings, consents, approvals and communication given by personal del/very, or by overnight carrier, shall be deemed given, received and effective upon delivery, and if Even by mail shall be deemed delivered forD~,-eight (48) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above. Hierarchy of Documents. In the event of a conilict or inconsistency, to the extent pen:nirted by law, this Agreement shall take precedence over the applicable ordinances, roles, regulations, perm/t requirements, development fees, other requirement, and/or Girl cial policies of the Town. i i 4 Maranarru¢~on's Wolf~ Gang. L.L.C. ~ ..... .~.,io~ ~. ~,..,o~.., ^g~., Page 4 of 8 ] 0 Counlerparts.. This Agrecmem may he executed in two or more counterparts each ofwhich shall be deemed an original but all of which together 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 ofall parties may be physically attached to a single document. I I Headings. The descriptive headings of the para~aphs of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. 12 Exhibits and Recitals. Any exhibit attached hereto shall be deemed lo have been incorporated herein by this reference with the same force and effect as if fully set forth in the body hereof. The Recitals set forth at the ~ginning of this Agreement are incorporated herein and the parties hereby confwrn the accuracy thereof. 13 Further Acts. Each of the parties hereto shah promptly 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. The parties agree that all conditions and contingencies set forth in this Agreement are critical In the development of the Property. 14 Time of Essence. Time is of the essence for each of the terms and provisions of this Agreement. 15 Inurement. This Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement and their respective successors and assigns. 16 Term. The term of this Agreement shall commence on the date and at the time an ordinance approving and adopting this Agreement is approved by the Town Council, and shall tenuinate on the 25'~ anniversary of such date unless extended by mutual agreement of the parties. Termination of this Agr~ment shall not affect the zoning of the Property. 17 No Partnerships: Third Parties. Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between Wolfe Gang and the Town. No tem~ or provision of this Agreement is intended or shall be for the benefit of any person, organization or entity not a party hereto, and no such other person, organization or entity shall have any right to cause of action hereunder. 1 g Entire Agreement. This Agreement constitutes the entire a~eement bena, een the panics hereto pertaining to the subject matter hereof. .all prior and contemporaneous a~eements, representations, and understandings of the parties, oral or written, are superseded and merged into this Agreement. 19 Amendment. This Agreement may be amended only by a written amendment executed by the Town and Wolfe Gang. 20 Good Standing. Authority,. Wolfe Gang represents and warrants to the Town that (a) Wolfe Gang is duly formed and validly existing under the laws of the State of A.rizona and qualified to do business in the State of Arizona; and (b) the individual(s) executing this Agreement on behalf of Wolfe Gang are authorized to do so. The Town represents and warrants to Wolfe Gang that (i) the Town is a municipal corporation duly formed and validly existing under the laws of the State of Arizona, and (ii) the individual(s) executing this Agreement on behalf of the Town are authorized to do so. 4 4 Wolfe Gang. L.L.C. 5 of 8 ~,.~lo~,.,., .~v=,.*~ rage 21 Severabilitv. If any portion of any provision of this Agreement is declared void or unenforceable, such portion shall be severed fi.om this Agreement and the remainder of the provision and remainder of this Agreement shall remain in full force and effect. The parties ac'knowledge and agree that, although the panics believe that the terms and conditions contained in this Agreement do not constitute an impermissible restriction of the police power of the Town, and that it is their express intention that such terms and conditions be construed and applied as provided herein, to the fullest extent possible, it is their further intention that, to the extent any such term or condition is found to constitute an irnpermissible restriction of the police pov,,er of the Town) such term or condition shall be construed and applied in such lesser fashion as may be necessary to reserve to the Town all such power and authority that cannot be restricted by contract. 22 Si~onificance of Court Orders. The parties agree that should a court determine ir'is not within the Town's discretion to translate zoning as provided herein, and in the event any court of competent jurisdiction enters a final oi-der relating to the zoning, density, use, or other provisions of this Agreement and requires compliance with such final order, such order shall be binding on the parties and such compliance will not be a breach of the tern~ of this Agreement. 23 Status Statements. Any party to this agreement (the "requesting party") may, at any thne, and from time to time, deliver written notice to any other party requesting such other party (the "providing party") to provide in writing that, to the knowledge of the providing party, (a) this A,..m'eement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, and if so amended, identifying the amendments, and (c) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the natu.re and amount of any such defaults (a "Status Statement"). A party receiving a request hereunder shall execute and return such Status Statement within twenty (20) days following the receipt thereof. The Town Manager or any Assistant Town Manager shall have the right to execute any Status Statement requested by Wolfe Crang hereunder. The Town shall have no liability for monetary damages to Wolfe Gang and transferee or mortgagee, or any other person in connection with, resuking from or based upon the issuance of any Status Statement hereunder. 24 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of A.rizona, and the parties consent to jurisdiction and venue in Pima County, Arizona. In particular, this Agreement is subject to the provisions ofA.R.S. § 38- 511. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective on the date and at the time an ordinance approving and adopting this A~eement is approved by the Town Council of the Town of Marana. Marana/Tucson's Wolf~ Gang, L.L.C. Prrann*xa~ioa & I)*vclopmcn! ACrccmcn~ Page 6 of 8 ATTEST: TOWN OF MARANA, an Arizona municipal corporation ~'. .... fB~./X-utton,~ Mayor APPROVED AS TO FORM AND AUTHORITY The foregoing Agreement has been reviewed by the undersigned attorney who has determined that it is in proper fom~ and within the power and authority ~anted under the laws of the State of Arizona to the Town of Marana. ,~"'~Daniel J. Hochuli, Esq. Attorney for Town ofMarana Tucmn's Wolt'e Gang. L.L.C. ion ~- ~>.vc~o..,~., ^~,,~,,~,, Page 7 of 8 TUCSON'S \VOLFE GANG, L.L.C., an Arizona limited liability company By _ . Its Managing Partner STATE OF ARIZONA County of Phna ) ) ss ) ' The foregoing instrument was ac'k. nowledued before me-,,this ~'f day of ~9.n - ')on') by ~9,,'4 't X, te,~/ Iai 0t ,-/:'- the ~. ~'./~. ?/~'~ ~/TF/.K--0 of Tucson's Wolfe Gang, EL.C. an .-%rizona ILmited liability company, on behalfc~fsai'd'Ihmiied li]~bi]Jty company. Notary Public My Con~nission Expires: '7 - t ~s · 4 Marana;'ru.-son'$ Wolfe Gang. I...L.C. .~ ..... =~,,io~ ~. r>,v,,o~,=~n, ^~==:,, Page 8 of 8