HomeMy WebLinkAboutResolution 2001-071 amendment to bajada phase 1 and canyon pass development agreements F. ANN RODRIGUEZ, ~ECORDER
~ECORDED B~: D K
D~PUT]~ RECORDER
7864 RO0F
SMa~A
TOWN OF M~R~NA
~'ATTN: TOWR CLERK
13251 N LON ADAMS RD
M~ANA AZ 85653
DOCRET: 11580
p~: 2985
NO. OF PAGES: 14
SEQUeNCe: 20011250653
06/28/2001
RES 16:29
M~IL
AMOUNT PAID $ 12.50
MARANA RESOLUTION NO. 2001-71
A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA,
ARIZONA, DECLARING AND ADOPTING AMENDMENTS TO THE BAJADA, PHASE I AND
CANYON PASS DEVELOPMENT AGREEMENTS BETWEEN THE TOWN OF MARANA AND
COTTONWOOD PROPERTIES, INC.
WHEREAS, the Town of Marana has the authority to modify and/or amend existing
development agreements pursuant to A.R.S. § 9-500.05(C); and
WHEREAS, the Town of Marana and the predecessor in interest in title of Trust 7804 and
Trust 7805 have executed a Pre-Annexation Development Agreement recorded in Docket 9211 at
Page 369 in the office of the Pima County Recorder known as the "Bajada Agreement"; and
WHEREAS, the Town of Marana and the predecessor in interest in title of Trust 7804 and
Trust 7805 have executed an Amended and Restated Development Agreement and Intergovernmental
Agreement recorded in Docket 9969 at Page 1923 in the office of the Pima County Recorder known
as the "Phase I Agreement"; and
WHEREAS, the Town of Marana and the predecessor in interest in title of Trust 7804 and
Trust 7805 have executed a Pre-Annexation Development Agreement recorded in Docket 8776 at
Page 2249 in the office of the Pima County Recorder known as the "Canyon Pass Agreement"; and
WHEREAS, The Bajada, Phase I and Canyon Pass Agreements shall be collectively referred
to herein as the "Development Agreements"; and
WHEREAS, Cottonwood Properties, Inc. is the intended master developer of the majority of
the property described and depicted in the Development Agreements; and
WHEREAS, Trust 7804 and Trust 7805 are the current owners of the majority of the property
depicted in the Development Agreements; and
WHEREAS, on July 26, 2000, the Town entered into an Amendment to Development
Agreements pursuant to Marana Resolution No. 2000-115, and now desires to replace that
Amendment with the Amendment to Development Agreements attached hereto as Exhibit "A."
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana,
Arizona, as follows:
Section 1: That the Amendment to Development Agreements attached hereto as Exhibit "A"
is hereby approved and adopted.
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Matana~aResol~onNo. 2~l-71
Section 2: All ordinances, resolutions, or motions and parts of ordinances, resolutions, or
motions of the Council in conflict with the provisions of this Resolution are hereby repealed, effective
as of the effective date of this Resolution.
Section 3: If any section, subsection, sentence, clause, phrase or portion of this Resolution is
for any reason held to be invalid or unconstitutional by the decision of any court of compctent
jurisdiction, such decision shall not affect the validity of the remaining portions hereof.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
19th day of June, 2001.
ATTEST:
APPROVED AS TO FORM:
As Town Attorney
and not personally
~N, JR.
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AMENDMENT TO DEVELOPMENT AGREEMENTS
(Bajada, Phase 1 and Canyon Pass)
(Amends Document Recorded in Docket 11418 at page 1885)
This Amendment (the "Amendment") is made as of ~-t/~t /~:
........ ,2001 by and among the Town
o~viarana, an Arizona mumc~pal corporation (the "Town"), Cottonwood Properties, Inc., an Arizona
corporation ("Cottonwood"), Lawyers Title of Arizona, Inc., an Arizona corporation, as Trustee
under Trust No. 7804~T ("Trust 7804") and Lawyers Title of Arizona, an Arizona corporation, as
Trustee under Trust No. 7805-T ("Trust 7805").
RECITALS:
A. The Town and the predecessor in title of Trust 7804 and Trust 7805
have executed a Pre-Annexation Development Agreement recorded in Docket 9211
at Page 369 in the office of the Pima County Recorder (as amended by an
Amendment to Pre-Annexation Agreemen0 which documents shall be referred to
collectively herein as the "Bajada Agreement".
B. The Town and the predecessors in title of Trust 7804 and Trust 7805
have executed an Amended and Restated Development Agreement and Inter-
Governmental Agreement recorded in Docket 9969 at Page 1923 in the office of the
Pima County Recorder (as amended by a First Amendment, Second Amendment and
Third Amendment) which documents shall be referred to collectively herein as the
"Phase 1 Agreement".
C. The Town and the predecessor in title of Trust 7804 and Trust 7805
have executed a Pre-Annexation Development Agreement recorded in Docket 8776
at Page 2249 (as amended by an Amendment to Pre-Annexation Development
Agreement) which documents shall be referred to collectively herein as the "Canyon
Pass Agreement".
D. The Bajada Agreement, the Phase 1 Agreement and the Canyon Pass
Agreement shall be referred to collectively herein as the "Development Agreements".
E. Trust 7804 and Trust 7805 are the current owners of a majority of the
property described and depicted in the Development Agreements (exclusive of the
District 1 Property described in the Phase 1 Agreement) and are the assignees of the
Developers rights and obligations under the Development Agreements pursuant to
the Assignment and Assumption of Ancillary Contracts recorded in Docket 10437
at Page 1728 in the Office of the Pima County Recorder. Cottonwood is the intended
master developer of the majority of the property described and depicted in the
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Development Agreements (exclusive of the District 1 Property deschbed in the Phase
1 Agreement) and all references to the "Developer" herein refer to any and all of
Cottonwood, Trust 7804 and Trust 7805 (and their beneficiaries) and/or such other
developer(s), if any, as the case may be, to whom Trust 7804-and Trust 7805
hereafter assign all or a portion of their rights and obligations under the Development
Agreements in accordance with the provisions of the Development Agreements.
F. The parties hereto previously entered into an Amendment to
Development Agreements dated October 24, 2000 and recorded in Docket 11418 at
Page 1885 in the Office of the Pima County Recorder ("Prior Amendment') in order
to amend an restate portions of the Development Agreements. The parties hereto
desire to amend and restate the Prior Amendment in its entirety.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto state, confirm and agree as follows:
AGREEMENT
1. Definitions.
Bajada Agreement shall have the meamng set forth ~n Recital A above.
Benchmark Date shall mean that certain date by which the Town has first received
Resort Sales Tax of at least One Million Dollars ($1,000,000) during the immediately prior twelve
(12) month or less period; upon achieving the Benchmark Date, the Town and the Developer shall
confirm such date in writing for the convenience of measuring certain other time periods set forth
herein.
"Biological Opinion" shall mean the biological opinion issued by the United States
Fish & Wildlife Service on October 23, 2000 with respect to Dove Mountain.
"Calculation Year" shall mean the one (1) year period between the Benchmark Date
and the first anniversary thereof, and each subsequent one (1) year period fi.om anniversary to
anniversary of the Benchmark Date for a term of twenty (20) years fi.om the Benchmark Date.
"Canyon Pass Agreement" shall have the meaning set forth in Recital C above.
"Co ' ' "
mparable C~t~es shall mean Tucson, Phoenix and Scottsdale.
Conservation Lands shall mean lands purchased by the Developer or the New CFD
which are acceptable to the U.S. Fish & Wildlife Service for mitigating environmental impacts to
Dove Mountain through preservation of land as contemplated in the Biological Opinion.
"Construction Premium" shall mean the extra one percent (1%) sales tax on the
construction industry adopted pursuant to Marana Ordinance No. 98.02.
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"Convention Visitors Bureau Costs" shall mean payments made by the Town to the
Convention Visitors Bureau on account of the Resort Hotel, to provide to the Resort Hotel operator
the benefits associated with membership.
"Deed of Trust" shall mean that certain standard form Deed of Trust (in form and
content mutually approved by the Town and the Developer) which shall encumber in first lien
position the real property described on the attached Exhibit C and depicted on the attached Exhibit
D.
"Developer" shall have the meaning set forth in Recital E above.
Development Agreements shall have the meaning set forth in Recital D above.
"Dove Mountain" shall mean all of the land area subject to the Dove Mountain
Specific Plan excepting, however, the District 1 Property described in the Phase I Agreement.
"Dove Mountain Specific Plan" shall mean the comprehensive amendment to the
RedHawk Specific Plan adopted pursuant to Marana Ordinance 2000.04.
"Habitat Preservation Agreement" shall mean that certain Habitat Preservation
Agreement to be executed by the U.S. Fish & Wildlife Service and the Town in the event the Town
receives a Qualified Preserve Lease Assignment whereby the Town shall agree to preserve and
manage the Tortolita Park Preserve for the benefit of the pygmy owl and other wildlife, while
allowing recreational, hiking, biking and equestrian opportunities.
"Net Revenue" shall mean the Resort Sales Tax and Resort Construction Tax
received by the Town during a Calculation Year, less the Town=s expenditures for Preserve Costs
and Convention Visitors Bureau Costs during such Calculation Year.
''New CFD" shall mean a duly established communities facilities district approved
by the Developer and the Town and encompassing a land area within the g.Property~ as such term
is de£med in the Bajada Agreement.
''New CFD Costs" shall mean all costs, expenses, fees and reserves arising out of or
related to the creation, establishment and initial bond funding of the New CFD, together with all
interest payments made by the New CFD to its bondholders in connection with the initial bond
funding of the New CFD.
"Other Public Facilities" shall mean the public utilities, trails and trailhead parking
which serve the Resort Hotel and/or the public as depicted on the attached Exhibit B (and such other
reclaimed water facilities serving Dove Mountain, the construction of which are required by the City
of Tucson) and which are constructed pursuant to contracts bid and awarded in compliance with any
applicable public bidding and conlract award requirements.
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"Other Public Facilities Costs" shall mean all costs and expenses incurred by the
Developer and/or a New CFD for the design and offsite and onsite construction of the Other Public
Facilities, together with any unreimbursed New CFD Costs.
"Phase 1 Agreement" shall have the meaning set forth in Recital B above.
"Preserve Costs" shall mean, until such time, if any, as there is a Qualified Preserve
Lease Assignment, all costs paid by the Developer or the New CFD for the acquisition of
Conservation Lands (whether before or after the Benchmark Date) as well as all direct costs and
expenses paid to third parties to manage the Conservation Lands for the benefit of the pygmy owl
and other wildlife in accordance with the requirements of the U.S. Fish & Wildlife Service. From
and after the date of a Qualified Preserve Lease Assignment, .~Preserve Costs@ shall mean all
payments due under the Preserve Lease (including any costs paid by the Developer or the Town to
obtain a Qualified Preserve Lease Assignment) as well as all direct costs and expenses incurred by
the Town or paid to third parties to manage the Tortolita Park Preserve in accordance with the
Habitat Preservation Agreement.
"Preserve Lease" shall mean State of Arizona Commercial Lease No. 03-105436 for
the Tortolita Park Preserve.
"Prior Amendment" shall have the meaning set forth in Recital F above.
"Qualified Expenses" shall mean (i) the Other Public Facilities Costs, (ii) the
Transportation Facilities Costs, (iii) any consultant costs or other costs paid to third parties by the
Developer or the New CFD to obtain the approval of, or satisfy the requirements of, a biological
opinion issued by the U.S. Fish & Wildlife Sere/ce with respect to Dove Mountain or portions
thereof and which allows for the development of the Resort Hotel, and after reimbursement in full
of all amounts for (i), (ii) and (iii) immediately above, then (iv) any unreimbursed Preserve Costs
paid by the Developer or the New CFD.
"Qualified Preserve Lease Assignment" shall mean an assignment of the lessee=s
interest in the Preserve Lease to the Town which complies with the following: (i) the assignment
occurs on or before the second anniversary of this Amendment, or, if later, the assignment is
consented to by the Developer; and (ii) all costs to obtain the assignment, excepting payments due
to the State of Arizona under the Preserve Lease after the assignment, are approved by the
Developer.
"Resort Construction Tax" shall mean all transaction privilege and sales taxes or
charges (however denominated or labeled) which are received by the Town with respect to the
construct/on of the Resort Hotel, the Transportation Facilities and the Other Public Facilities (but
excluding any Resort Sales Tax as described below).
"Resort Hotel" shall mean the resort hotel facility to be located within Dove
Mountain to include over 400 rooms, golf facilities and clubhouse, restaurants, meeting moms, spa
areas, ancillary retail facilities and time share facility.
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"Resort Sales Tax" shall mean all transaction privilege, sales, room and/or bed taxes
or charges (however denominated or labeled) which are received by the Town from or with respect
to the Resort Hotel and its operations, including but not limited to taxes or charges which arise out
of, or are established with respect to, room charges, food and beverage sales, retail sales and sales
or charges at golf facilities with respect to which a tee time or reservation agreement exists with the
Resort Hotel (but excluding any Resort Construction Tax as described above).
rtolita Park Preserve shall mean that certain approximately 2,400 acres depicted
on the attached Exhibit A.
"Transportation Facilities" shall mean the public roads depicted on the attached
Exhibit B and any public utilities located within or adjacent to the right-of-way for the public roads
depicted on the attached Exhibit B and which are constructed pursuant to contracts bid and awarded
in compliance with any applicable public bidding and contract award requirements.
"Transportation Facilities Costs" shall mean all costs and expenses incurred by the
Developer and/or a New CFD for the design and construction of the Transportation Facilities, and
any unreimbursed New CFD Costs.
2. Public Purposes. The parties hereto recognize and acknowledge that the development
of the property within Dove Mountain (including but not limited to development of the Resort Hotel)
and the resulting augmentation of revenues and commercial and/or recreational activities upon and
about Dove Mountain will directly benefit the Town and its residents. The parties hereto further
acknowledge that such development makes it necessary or desirable that the Transportation Facilities
and Other Public Facilities be constructed and the Preserve Lease and Habitat Preservation
Agreement or the Conservation Lands be established. The Town has found that the development
of the property within Dove Mountain pursuant to the Dove Mountain Specific Plan and the
Development Agreements as amended hereby has resulted and will result in benefits to the public
health, welfare and safety of the Town and its residents by (i) providing well planned development
with appropriate open space and recreational areas, (ii) increasing tax and other revenues to the
Town based on businesses and improvements to be constructed on the property within Dove
Mountain, (iii) creating jobs through the conslrucfion and operation of new businesses to be located
within Dove Mountain, (iv) providing for new public facilities as described herein, and (v) otherwise
generally enhancing the Town for the benefit and economic welfare of its residents, and for these
reasons the Town will take the actions described herein and will establish a funding mechan/sm and
shall make the payments and reimbursements as described herein.
3 Preserve Lease. If the Town is offered a Qualified Preserve Lease Assignment, the
Town shall accept such an assignment provided that the Qualified Preserve Lease Assignment occurs
on or before six (6) years after commencement of the Preserve Lease. Additionally, if the Developer
received reimbursement of Preserve Costs prior to the Qualified Preserve Lease Assignment, and the
next payment under the Preserve Lease is due prior to the next anniversary of the Benchmark Date,
the Developer shall reimburse the Town an amount equal to the prior annual rental payment due
under the Preserve Lease times a fraction, the numerator of which shall be the number of calendar
days between the next anniversary of the Benchmark Date and the due date of the next payment due
under the Preserve Lease, and the denominator of which shall be three hundred sixty five (365).
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4. Habitat Preservation Agreement. In the event that the Town is offered a Qualified
Preserve Lease Assignment, then on or before accepting the Qualified Preserve Lease Assignment,
the Town will also execute a Habitat Preservation Agreement with the U.S:Fish & Wildlife Service
in form and content approved by the Town, the U.S. Fish & Wildlife Service and the Developer.
5. Payment of Preserve Costs. The Preserve Costs will be paid by the Developer and/or
the New CFD until the Benchmark Date; fi.om and after the Benchmark Date, all Preserve Costs will
be paid (and/or reimbursed to the Developer or the New CFD, as the case may be) by the Town
(subject to the limitations set forth below) until the original expiration date set forth in the Preserve
Lease. Upon achieving the Benchmark Date, the Town shall promptly reimburse the Developer or
the New CFD, as the case may be, for the Preserve Costs provided by the Deveioper or the New CFD
provided that such initial reimbursement by the Town to the Developer and/or the New CFI) for the
acquisition costs of the Conservation Lands shall not exceed an amount equal to two annual rental
payments under the Preserve Lease. Thereafter, the Preserve Costs reimbursed by the Town to the
Developer and/or the New CFD, as the case may be, on or about each anniversary of the Benchmark
Date for the acquisition costs of the Conservation Lands shall never exceed in any one (1) year
period the annual rental payment under the Preserve Lease for such one year period. Any Preserve
Costs previously paid by the Developer and/or the New CFD and not reimbursed pursuant to this
paragraph 5 shall be reimbursed to the Developer or the New CFD, as the case may be, pursuant to
paragraph 8 hereof after payment in full of all other Qualified Expenses.
6. SecuriW for Developer Payments. As security for the obligation of the Developer to
initially pay the Preserve Costs, upon the Town=s execution of the Qualified Preserve Lease
Assignment and Habitat Preservation Agreement, the Developer shall cause the Deed of Trust to be
executed and delivered to the Town for recording.
7. Resort Construction Tax. Commencing when the Resort Construction Tax is first
received by the Town and extending for a period of twenty (20) years thereafier, the Town shall
.reimburse and pay to the Developer or the New CFD, as the case may be, within thirty (30) days of
~nvmce from the Developer, (but no more often than quarterly) an amount equal to the
Transportation Facilities Costs, provided that such reimbursement amount shall not exceed two-
thirds (2/3) of the cumulative amount of the Resort Construction Tax received by the Town.
8. Resort Sales Tax. Within thirty (30) days after the end of any Calculation Year in
which the Town receives Net Revenue of at least One Million Dollars ($1,000,000), the Town shall
reimburse and pay to the Developer or the New CFD, as the case may be, an amount equal to all
Qualified Expenses, provided, however, that (i) such reimbursement amount for any Calculation
Year shall not exceed twenty percent (20%) of the Resort Sales Tax for such Calculation Year, and
(ii) no such reimbursement of Qualified Expenses pursuant to this paragraph 8 shall cause the Net
Revenue to be retained by the Town for such Calculation Year to be less than One Million Dollars
($1,ooo,ooo).
9. Convention Visitors Burean. The Convention Visitors Bureau serves the community
by securing and booking convention activities for the lodging industry. The Town shall timely pay
the Convention Visitors Bureau Costs.
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10. Construction Premium Commencing upon the date, if ever, that the Town shall
increase the Construction Premium, and extending until twenty (20) years after the Benchmark Date,
the Town shall reimburse and pay to the Developer or the New CFD, as the-case may be, an amount
equal to any unreimbursed Transportation Facilities Costs and then an amount equal to all costs
incurred by the Developer and/or the New CFI), as the case may be, for the costs of designing or
constructing any public road or unreimbursed Other Public Facilities within the Town, provided,
however, that the aggregate of the reimbursements under this paragraph shall not exceed the
additional Construction Premium collected by the Town with respect to construction activity within
Dove Mountain as a result of so increasing the Construction Premium.
11. Resort Bed Tax. The current rate for so called "bed taxes" within the Town and the
Comparable Cities are as follows: Tucson (4% plus $1.00 per night), Phoenix (3%), Scottsdale (3%)
and the Town (3%). The parties hereto recognize and acknowledge that the Resort Hotel will be
competing in a statewide and a regional marketplace. The Town recognizes the importance of not
placing the Resort Hotel at a competitive disadvantage with hotels in any of the Comparable Cities
by increasing bed taxes in excess of the average in the Comparable Cities as such competitive
disadvantage could result in a reduction of the economic benefits enjoyed by the Town and its
residents (by way of tax revenues, employment opportunities and otherwise) fi.om the operation of
the Resort Hotel. Therefore, if the Town shall increase the bed tax, however denominated or labeled,
(or other similar taxes that impact the Resort Hotel to a greater degree than the general community)
at any time within twenty (20) years following the date the Resort Hotel first opens for business to
a rate in excess of the average rate for the Comparable Cities, then an amount equal to the taxes
collected from the Resort Hotel in excess of such average rate shall be paid to the owner of the
Resort Hotel upon receipt by the Town to enable the owner of the Resort Hotel to maintain its
competitive position in the marketplace by increasing advertising to draw more visitors to the Town,
enhancing the hotel facility, developing additional public infi.astmcture and otherwise. The State
of Arizona or Pima County may in the future levy taxes to fund the Convention Visitors Bureau that
are not levied on a uniform basis in the Town and the Comparable Cities. In the event of such levies,
the portion that funds the Convention Visitors Bureau in any jurisdiction shall be added to the bed
tax in that jurisdiction prior to calculating the average rate set forth above. Additionally, in
determining the average rate for purposes set forth above when there is a per night amount within
a jurisdiction, then the percentage rate for that jurisdiction shall be calculated by taking the total bed
tax revenue in the preceding calendar year and dividing same by the total room revenue in the
preceding calendar year.
12. Calculation of Resort Hotel Permit Fees. The Town shall calculate permit fees for
the Resort Hotel based on the methodology and estimated conslruction costs in the latest edition of
the Uniform Building Code, as adopted by the Town fi.om time to time.
13. New CFD. The Town shall cooperate with the Developer to form the New CFD(s)
to construct the Transportation Facilities and the Other Public Facilities. To the extent that a New
CFD does not fund the design and construction of certain of the Transportation Facilities or the
Other Public Facilities, then the Town will pay the reimbursements due hereunder directly to the
Developer or its assigns and then to the New CFD.
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14. Public Bidding Requirement. Reimbursements with respect to Transportation
Facilities, Other Public Facilities, or other public roads or improvements provided for herein shall
only be payable to the New CFD or the Developer as provided herein if the contracts for construction
are bid and awarded in compliance with any applicable public bidding and contract award
requirements.
15. Vested Development and Land Use Rights. The Development Agreements as
amended hereby establish legally protected and vested rights for the development and use of land
in Dove Mountain in a manner which is consistent with the Dove Mountain Specific Plan and the
Development Agreements as amended hereby. The parties hereto acknowledge that Trust 7804,
Trust 7805, Cottonwood and other owners of property within Dove Mountain have received building
permits, proceeded with substantial development, expended substantial sums, incurred substantial
liabilities and otherwise relied in good faith upon the Development Agreements and the Dove
Mountain Specific Plan (and its predecessors); the Town hereby reaffirms its commitment to allow
Trust 7804, Trust 7805, Cottonwood and other owners ofpmperty within Dove Mountain to develop
in accordance with, and otherwise rely upon the enfomeability of, the Dove Mountain Specific Plan,
the Development Agreements and any plans heretofore or hereai%r approved by the Town with
respect to the Resort Hotel. Such vested development and land use rights have been established with
respect to Dove Mountain by common law, contract and statutory authority (including but not limited
to ARS , 9-500.05 and ARS ' 9-500.11), and such rights ensure reasonable certainty, stability and
fairness to the Developer and the owners of Dove Mountain.
16. Amendment of Baiada Agreement. The parties hereto acknowledge that the
"Property" described in the Bajada Agreement has been annexed and the "Conceptual Master Plan"
described in the Bajada Agreement has been implemented, amended and superseded by the Dove
Mountain Specific Plan. Paragraph 4 of the Pre-Annexation Development Agreement recorded in
Docket 9211 at Page 369 and paragraph I of the Amendment to Pre-Annexation Development
Agreement recorded in Docket 10626 at Page 628 are hereby superseded and replaced in their
entirety by the provisions of this Amendment. The provisions of this Amendment shall be deemed
to amend the Bajada Agreement and all remaining terms of the Ba.~ada Agreement not inconsistent
with the provisions hereof shall remain in full force and effect.
17. Amendment of Canyon Pass Agreement The parties hereto acknowledge that the
"Property" described in the Canyon Pass Agreement has been annexed and the "Conceptual Master
Plan" described in the Canyon Pas Agreement has been implemented, amended and superseded by
the Dove Mountain Specific Plan. Paragraph 3 of the Pre-Annexation Development Agreement
recorded in Docket 8776 at Page 2249 and paragraph 1 of the Amendment to Pre-Annexation
Development Agreement recorded in Docket 10626 at Page 636 are hereby superseded and replaced
in their entirety by the provisions of this Amendment. The provisions oft/tis Amendment shall be
dA~emed to. amc. nd the Canyon Pass Agreement and all remaining terms of the Canyon Pass
greement not inconsistent with the provisions hereof shall remain in full force and effect.
18. Amendment of Phase 1 Agreement. The parties hereto acknowledge that the
"Specific Plan" described in the Phase 1 Agreement has been amended and superseded by the Dove
Mountain Specific Plan. Paragraph 6.9 of the Amendment and Restated Development Agreement
and Intergovernmental Agreement recorded in Docket 9969 at Page 1923 and paragraph 1 of the
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Third Amendment to the Amended and Restated Pre-Aunexation Development Agreement and
Intergovernmental Agreement recorded in Docket 10626 at Page 620 are hereby superseded and
replaced in their entirety by the provisions of this Amendment. The provisions of this Amendment
shall be deemed to amend the Phase 1 Agreement and all remaining terms of the Phase 1 Agreement
not inconsistent with the provisions hereof shall remain in full force and effect.
19. Tracking Assistance. The Developer shall timely provide the Town fi:om time to time
with a list of all tax paying persons and entities (and shall otherwise provide the Town with such
information as the Town may reasonably request) to be used in the calculation of any payments due
hereunder.
20. Miscellaneous. In the event of litigation to enforce the terms of this Agreement, the
prevailing party shall be entitled to receive its reasonable attorneys' fees and costs of suit.
Time is hereby made of the essence of this Agreement.
The wording of this Agreement has been arrived at by negotiation between the
parties, and, in the event of any ambiguity, this Agreement shall not be construed in favor of or
against any party hereto on account of such party having prepared any draft or final version hereof.
This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and assigns.
In the event any tax payment or reimbursement due and used in the calculation of any
payment hereunder is adjusted or changed due to error, overpayment, underpayment or
miscalculation, and as a result thereof any payment previously made hereunder is too high or too
low, then the Town and the Developer or the New CFI), as the case may be, shall promptly remit (or
credit) to the other such amounts as are necessary to correct the underpayment or overpayment of
sums due hereunder.
This Agreement provides for reimbursements payable by the Town for certain costs
and expenses and provides various mechanisms for the calculation and payment of such
reimbursements; in no event shall the Developer or the New CFD, as the case may be, ever be
reimbursed by the Town more than once for the same cost or expense.
This Agreement constitutes the entire agreement between the parties and the parties
expressly acknowledge that there are no other agreements or understandings in regard to this
transaction other than as set forth herein or contained within other written agreements referred to
herein.
The recitals set forth herein are true and correct in all material respects and are
incorporated herein by reference.
No payment or reimbursement hereunder shall be deemed to be an assignment or
pledge of tax revenue.
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Except as specifically set forth herein, nothing herein shall be deemed to obligate the
Town, the Developer or any owner of the Property to complete all or any part of the development
of the Property.
If any party is required pursuant to this Agreement to give its prior written approval,
consent or permission, such approval, consent or permission shall not be unreasonably delayed or
withheld.
Each party hereto shall fi.om time to time execute and deliver such further
instruments as the other party or its counsel may reasonably request to effectuate the intent of this
Agreement, including, but not limited to, documents necessary for compliance with the laws,
ordinances, rules or regulations of any applicable governmental authorities.
The waiver by either party of any breach of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, condition or covenant contained herein.
If any provision or any portion of any provision of this Agreement or the application
of any such provision or any portion thereof shall be held invalid or unenfomeable, the remaining
portion of such provision and the remaining provisions of this Agreement, or the application of such
provision or portion of such provision, shall not be affected thereby.
This Agreement shall be construed in accordance with the laws of the State of
Arizona. In the event of any dispute hereunder, exclusive jurisdiction and venue shall exist only in
Pima County, Arizona.
Captions and headings as set forth herein are for reference purposes only and shall
not be used in construing this Agreement.
IN WITNESS WHEREOF the parties executed th/s Agreement the day and year written above.
ATTEST:
THE TOWN OF MARANA, an Arizona
municipal corporation
Jocelyn Entz
Bobby Sutton, Jr., Mayor
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APPROVED AS TO FORM AND
AUTHORITY:
The foregoing Amendment has been reviewed
by the undersigned 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.
Daniel J. Hochuli, Town Attomey
APPROVAL BY DEVELOPER:
COTTONWOOD PROPERTIES, INC.,
an Arizona corporation,
TRUST 7804:
LAWYERS TITLE OF ARIZONA, INC.,
an Arizona corporation, as Trustee under Trust
No. 7804-T only, and not in its corporate capacity
By:
Its:
By:
Its:
TRUST 7805:
LAWYERS TITLE OF ARIZONA, INC.,
an Arizona corporation, as Trustee under Trust
No. 7805-T only, and not in its corporate capacity
By:
Its:
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EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Depiction of Tortolita Park Preserve __
Depiction of Other Public Facilities and Transportation Facilities
Legal description of property encumbered by Deed of Trust
Depiction of property encumbered by Deed of Trust
The aforementioned exhibits were previously recorded on November 3, 2000 by the Pima County
Recorder's Office in Docket 11418, Pages 1885-1904 and may be viewed at the Marana Town
Hail, 13251 N. Lon Adams Road, Marana, AZ 85653.
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