HomeMy WebLinkAboutResolution 2001-119 development agreement for hb developmentMARANA RESOLUTION NO. 2001-119
A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA,
ARIZONA, AUTHORIZING THE TOWN TO ENTER INTO A DEVELOPMENT AGREEMENT
WITH H.B. DEVELOPMENT CO. FOR THE PURPOSES OF PROVIDING PUBLIC
INFRASTRUCTURE DEVELOPMENT.
WHEREAS, the growing population of the Town of Marana places increasing demand upon
the existing public infrastructure and parks in the region; and
WHEREAS, the Town desires to develop new public infrastructure and parks to meet the
demands that are placed upon the Town's roadway, utility and park facilities as a consequence of
increasing population and the proportionate increase in usage brought about by new growth; and
WHEREAS, the Town and the residents of Continental Reserve will .jointly benefit from the
development of the roadway, utility and park facilities projects; and
WHEREAS, it is in the best interest of the citizens of the Town of Marana to improve the
capacity of the Town's existing public roadway, utility and park facilities through the development
of additional public parks and improvement of roadway and utility facilities associated with new
development.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, that the Mayor is authorized to execute a Development Agreement with H.B.
Development, Co. for the purpose of establishing an agreement to improve, fund, and convey to the
Town public roadway, utility and park facilities in the Continental Reserve area.
Page 1 of 2
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
18th day of September, 2001.
(-~'~o'ffce~/n C. Entz
Town Clerk
APPROVED AS TO FORM:
/Daniel J. H~chul~
As Town Attorney and not personally
Ma)~6rr l~ol~y Sutton, Jr.
Page 2 of 2
F. ANN RODRIG'U- RECORDER
RECORDED BY: V.
DEPUTY RECORDER
7995 ROOE
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D( ~T: 11667
P.ti..,~", : 2156
NO. OF PAGES: 27
SEQUENCE: 20012120446
11/01/2001
AG 16:17
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
MAIL
AMOUNT PAID $ 19.00
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MARANA
TOWN OF MARANA
RE- RECORDING
This document, Development Agreement between the Town of Marana and H.B. Land
Development Company, was originally recorded by the Pima County Recorder's office on
October 4, 2001, in Docket 11648, Pages 2340 through 2355. It is being re-recorded because
of omitted exhibits. All exhibits listed on page ill of this agreement are being included at
this time. The changes are as follows:
EXHIBIT A:
WAS:
OMITTED
IS: Legal Description/Map of the Property
EXHIBIT B:
WAS:
OMITTED
IS:
Plat Resolution No. 2000-19
EXHIBIT C: ':
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WAS: OMITTED IS: Park Site Design ....
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EXHIBIT D: -
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WAS: OMITTED IS: Map of the Public Access Trail
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F. ANN RODRIGl ,RECORDER
RECORDED BY: VLJ
DEPUTY RECORDER
7995 ROOE
.'
SMARA
TOWN OF MARANA
ATTN: TOWN C:t,ERK
13251 N LON ADAMS RD
MARANA~AZ 85653
When recorded, return to:
Daniel J. Hochuli, Esq.
Daniel J. Hochuli & Associates, P.C.
220 E. Wetmore Rd., Suite 110
Tucson, AZ 85705
D....ET: 11648
PAGE: 2340
NO. OF PAGES: 16
SEQUENCE: 20011930631
10/04/2001
AG 16:47
MAIL
AMOUNT PAID $ 13.50
DEVELOPMENT AGREEMENT
BETWEEN
THE TOWN OF MARANA
AND
H.B. LAND DEVELOPMENT CO.,
104153.5
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T ABLE OF CONTENTS
Page
1. Development of the Property.. ........... .... ...... ...... ......... ..... ..... ............ ..... ........2
1.1 Development in Accordance with the MDC and Zoning ..................2
1.2 Zoning & Plat Conditions..................................................................2
2. Transportation Impact Fees ........................................................................... 2
3. T own Park...................................................................................................... 2
3.1. Park Dedication and Improvements...................................................2
3.2. Future Improvements......................................................................... 3
3.3 . Wade Road Improvements................................................................. 3
4. Public Access Trail Dedication...................................................................... 3
5. Impact Fee Waivers....................................................................................... 3
6. Silverbell Road and Somerton Drive Traffic SignaL....................................3
7. Protected Development Rights......................................................................4
8.
Cooperation and Alternative Dispute Resolution..........................................4
8.1. Appointment of Representatives........................................................4
8.2. Timing................................................................................................4
8.3. Outside Consultants...........................................................................4
8.4. Default; Remedies.. ............................. ........ ....... ..... .......... ....... ..........5
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Notices and Filings........................................................................................ 5
9.1. Manner of Serving .............................................................................5
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General Terms & Conditions ............................................ ..... ..... ..... ........... ...6
1 0.1. Term................................................................................................... 6
1 0.2. Waiver................................................................................................ 6
10.3. Attorneys' Fees................................................................................... 7
10.4. Counterparts....................................................................................... 7
10.5. Headings and Recitals........................................................................ 7
10.6. Exhibits.............................................................................................. 7
10.7. Further Acts....................................................................................... 7
10.8. Future Effect...................................................................................... 7
10.9. Termination Upon Sale to Public.......................................................8
10.10. No Partnership and Third Parties....................................................... 8
10.11. Other Instruments ..............................................................................8
10.12. Imposition of Duty By Law............................................................... 8
10.13. Entire Agreement............................................................................... 8
10.14. Amendment.............................................. ....... ........................ ........... 8
10.15. Names and Plans ........................ .................. ....... .......... ....... ..............8
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10.16. Good Standing; Authority.................................................................. 9
10.17. Severability.................................................................................. ...... 9
10.18. Governing Law/Arbitration............................................................... 9
10.19. Recordation ..................... .............................. ............ .......... ..... ..........9
10.20. No Developer Representations.......................................................... 9
10.21. Approval...... ........ ....... .............................. ............ ..... ............ ....... .....1 0
10.22. Force Majeure .......... ................................. ............ ..... ............ ............1 0
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Exhibit A
Exhibit B
Exhibit C
Exhibit D
EXHIBIT LIST
Legal Description/Map of the Property
Plat Resolution No. 2000-19
Park Site Design
Map of the Public Access Trail
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (hereinafter "Agreement") is made
as of the 18th day of September 2001, by and between the TOWN OF MARANA, an
Arizona municipal corporation (the "Town") and H.B. Land Development Co., an
Arizona Corporation (the "Developer").
RECIT ALS
A. The Developer is the owner of approximately 598.7 acres of real
property within the corporate limits of the Town, legally described and depicted on
Exhibit "A" attached hereto (the "Property").
B. The Developer intends to develop a two-phase master-planned
community, commonly identified as Continental Reserve ("Continental Reserve"),
that will include single-family residences, recreation/open space and commercial uses
on the Property.
C. On October 19, 1999, the Town adopted Marana Resolution No. 99-
101, approving the preliminary block plat for Continental Reserve (the "Preliminary
Plat"). On February 15,2000, the Town adopted Marana Resolution No. 2000-19
(the "Plat Resolution"), approving the final block plat for Continental Reserve (the
'Final Plat"), a copy of which is attached as Exhibit "B". The Town has also
approved the Developer's infrastructure improvement plans (the "Improvement
Plans") the Continental Reserve Preliminary Grading Plans (the "Grading Plans") and
the parties have entered into a water service agreement. Additionally, the Developer
has received authorization from the United States Army Corps of Engineers for
construction under Section 404 of the Clean Water Act.
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D. The future development of the Property shall be subject to (i) the Pima
Farms Specific Plan as adopted by the Town and amended from time to time (the
"Specific Plan"), (ii) the Marana Development Code (including the written rules,
regulations, procedures and other policies relating to development of land, whether
adopted by the Mayor and Councilor by Town staff) (the "MDC"), (iii) conditions of
the Preliminary Plat, (iv) conditions of the Final Plat as detailed in the Plat
Resolution, and (v) the Improvement Plans, collectively establishing, among other
things, the type of land uses, location, density and intensity of such land uses, and
community character of the Property, and providing for, among other things, the
development of a variety of housing and recreation/open space opportunities.
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E. The Developer and the Town desire that the Property shall be
developed in accordance with the MDC, the Preliminary Plat, the Plat Resolution, the
Improvement Plans, the Grading Plans and the Specific Plan, as amplified and
supplemented by this Agreement. The parties 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.
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F. The parties understand and acknowledge that this Agreement is a
"Development Agreement" within the meaning of, and entered into pursuant to the
terms of, A.R.S. S 9-500.05, in order to facilitate the development of the Property.
G. 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, requiring development of the
Property consistent with the MDC, the Preliminary Plat, the Plat Resolution, the
Improvement Plans, and the terms and conditions of this Agreement.
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 of the Property.
1.1. Development in Accordance with the MDC and Zoning. Prior to
the approval and execution of this Agreement, the Town adopted the Specific Plan,
and approved the Preliminary Plat, the Plat Resolution, Improvement Plans and the
Grading Plans. The Property shall be developed in accordance with these documents,
which, in conjunction with the MDC, set forth the basic land uses, densities and
intensities of such land uses as presently authorized for the Property and development
regulations related thereto. Upon compliance by the Developer with the applicable
development review and approval procedures 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 MDC, the Preliminary
Plat, the Plat Resolution, the Improvement Plans and the Specific Plan.
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1.2. Zoning & Plat Conditions. The Developer agrees to fulfill all
conditions outlined in the Preliminary Plat, the Plat Resolution and the Specific Plan
as may be modified by this Agreement for the Property.
2. Transportation Impact Fees. The Town agrees that
notwithstanding any impact fee provisions to the contrary, the Town's transportation
impact fees to be assessed upon development within Continental Reserve shall be due
and payable only upon sale and closing for each residential unit in Continental
Reserve, and not at any earlier time, including but not limited to the time for issuance
of building permits for such units.
3. Town Park.
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3.1. Park Dedication and Improvements. The Developer has agreed
to dedicate a portion of Block 5 of the Final Plat making up approximately nine acres
to the Town for park and recreational uses (the "Park"), with an approximate
estimated value of approximately $2,000,000. The Developer shall fund and
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construct both phases of improvements to the Park (the "Park Improvements")
consistent with the park site design approved by the Town and attached hereto as
Exhibit "C". The concept plans for the Park Improvements have been jointly
reviewed and approved by the Developer and the Town Manager. The construction
plans shall be submitted to the Town Parks and Recreation Director for review and
approval consistent with the agreed on concept plan, which approval shall not be
unreasonably withheld. Construction of the Park Improvements shall be completed
not later than three years after the Effective Date of this agreement. Upon completion
of the Park Improvements, the Developer will dedicate and the Town will accept the
Park and the Park Improvements for ownership and maintenance.
3.2. Future Improvements. In consideration for the dedication of the
Park and the construction of the Park Improvements, the Town agrees that the Park
Improvements fulfill and satisfy any and all current and future on-site or off-site
regional park improvement requirements for Continental Reserve and subdivisions
within Continental Reserve that are or may be adopted by the Town.
3.3. Wade Road Improvements. In further consideration for the
dedication of the Park and the construction of the Park Improvements, the Town
agrees to be fully responsible for completing the improvements to Wade Road by the
beginning of home construction in Phase 2 of Continental Reserve, and to eliminate
condition number 9 of the Preliminary Plat Resolution requiring the Developer to
make such improvements to Wade Road.
4. Public Access Trail Dedication. The Developer shall dedicate to the
Town a public access trail to be formed from the W AP A line easement, the E1 Paso
Natural Gas line easement and the existing public access trail located on the western
border of Continental Reserve (the "Public Access Trail"), all as depicted on Exhibit
"D" attached hereto. Trails are unimproved and are solely for pedestrian, equestrian
and similar non-motorized type use. The Developer shall dedicate the Public Access
Trail at the time of submission and recording of the respective subdivision plats in
which various portions of the Public Access Trail are located or earlier by agreement
between the Developer and the Town. The Developer's dedication of the Public
Access Trail shall satisfy any and all requirements by the Town of the Developer for
the current or future dedication of public access trails. The Town will comply with
all applicable provisions of the grant of easement recorded in Docket 11445
commencing at Page 1513.
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s. Impact Fee Waivers. In the event that the Town imposes impact fees
for infrastructure improvements located either on or off Continental Reserve,
including but not limited to transportation, park and trail impact fees, the Developer
shall receive credit against such impact fees in an amount equal to any voluntary fees
or contributions of resources, such as the Park site, that the Developer has paid or
provided to the Town as set forth in A.R.S. S 9-463.05.
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6. Silverbell Road and Somerton Drive Traffic Signal. The Developer
shall be responsible for payment of the Developer's proportional share of the cost of a
traffic signal to be located at the intersection of Silverbell Road and Somerton Drive,
if warranted, based on the a traffic analysis prepared by the Developer and approved
by the Town.
7. Protected Development Rights.
7.1. A substantial commitment of resources has been made for public
and private improvements such as but not limited to the water system, Park
Improvements, roads, open space, trails and site work. Therefore. one of the purposes
of this Agreement is to establish legally protected rights for the development of the
Property in a manner which is consistent with the Preliminary Plat, the Plat
Resolution, the Specific Plan, the Improvement Plans, the Grading Plan, the MDC,
and this Agreement, in order to ensure reasonable certainty, stability and fairness to
the Developer over the term of this Agreement. Toward this end, Developer and
Town agree that the zoning designations granted by the Specific Plan shall remain in
effect and shall not be changed without the agreement of the Developer for the term
of this agreement.
8. Cooperation and Alternative Dispute Resolution.
8.1. Appointment of Representatives. To further the commitment of
the parties to cooperate in the progress ofthe Development, the Town and the
Developer each shall designate and appoint a representative to act as a liaison
between the Town and its various departments and the Developer. The initial
representative for the Town (hereinafter "Town Representative") shall be the
Planning Director, and the initial representative for the Developer shall be Mark
Weinberg 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 ofthe Property.
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8.2. 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.
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8.3. Outside Consultants. In the event the Town 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 ofthe Developer's liability
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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 Councilor other
board or person having final approval rights on each Submitted Material. The
Developer's liability for Consultant fees hereunder shall be unconditional and the
Developer shall indemnify and hold the Town harmless from any claims relating to
such fees.
8.4. Default; Remedies. If either party hereto defaults (the
"Defaulting Party") with respect to any of such party's obligations hereunder, then the
other party hereto (the "Non-Defaulting Party") shall be entitled to give written notice
in the manner prescribed in Section 10.1 to the Defaulting Party, which notice shall
state the nature of the default claimed and make demand that such default be
corrected. The Defaulting Party shall then have (i) twenty (20) days from the date of
such notice within which to correct such default if it can reasonably be corrected by
the payment of money, or (ii) sixty (60) days from the date of such notice to cure
such default if action other than the payment of money is reasonably required, or if
any such non-monetary default cannot reasonably be cured within sixty (60) days,
then such longer period as may be reasonably required, provided and so long as such
cure is promptly commenced within such period and thereafter diligently prosecuted
to completion. If any such default is not cured within the applicable time period(s)
set forth above in this Section 9.4, then the Non-Defaulting Party shall be entitled to
commence an action at law or in equity in the Pima County Superior Court. The
parties hereto agree that due to the size, nature and scope of the Development, and
due to the fact that it may not be practical or possible to restore the Property to the
condition which existed prior to Developer's development and improvement work,
once implementation of this Agreement has begun, money damages and remedies at
law will likely be inadequate and that specific performance will likely be appropriate
for the enforcement of this Agreement. This Section 9.4 shall not limit any other
rights, remedies, or causes of action that either party may have at law or in equity.
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9. Notices and Filings.
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9.1. 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 (or to such
other addresses as either party hereto may from time to time designate in writing and
deliver in a like manner):
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The Town:
Town of Maran a
Planning Director
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:
Mark Weinberg
H.B. Land Development Co.
2200 East River Road, Suite 115
Tucson, Arizona 85718-6586
With a copy to:
Mary Beth Savel
Lewis and Roca LLP
One South Church Ave., Suite 700
Tucson, Arizona 85701-1611
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10. General Terms and Conditions.
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10.1. Term. This Agreement shall become effective upon its
execution by all the parties and the taking effect of a duly adopted resolution of the
Town's governing body approving the Agreement (the "Effective Date"). The term
of the Agreement shall commence upon the Effective Date and, unless sooner
terminated by the mutual consent of the parties, shall automatically terminate and
shall thereafter be void for all purposes twenty (20) years from the date of this
Agreement provided that a preliminary subdivision plat has been approved within 3
years of the Effective Date. If the parties determine that a longer period is necessary
for any reason, the term of this Agreement may be extended by written
acknowledgment executed by the parties.
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10.2. Waiver. No delay in exercising any right or remedy shall
constitute a waiver thereof, and no waiver by the Town or the Developer of the
breach of any covenant of this Agreement shall be construed as a waiver of any
preceding or succeeding breach of the same or any other covenant or condition of this
Agreement.
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10.3. 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 and 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.
1004. 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.
10.5. 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.
10.6. 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.
10.7. 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
by the Developer and its successors.
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10.8. Future Effect. This Agreement shall run with the land. 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, except as provided in
Section 11.9 below. To the extent permitted by law, the Developer's rights hereunder
may be assigned by a written instrument, recorded in the Official Records of Pima
County, Arizona, expressly assigning such rights. The obligations of the Developer
hereunder shall be binding upon anyone owning any right, title or interest in the
Property as long as such obligation has been specifically assumed in writing or as
otherwise required by law. The Town understands that the Developer may create one
or more entities or subsidiaries wholly owned or controlled by the Developer or
Diamond Ventures, Inc. for purposes of carrying out the development of the Property
as contemplated in this Agreement. 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.
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10.9. 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 oflonger than one year) or
sold to the end 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.
10.10. 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 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.
10.11. 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.
10.12. Imposition of Duty By Law. This Agreement does not relieve
any party hereto of any obligation or responsibility imposed upon it by law.
10.13. 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.
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10.14. Amendment. 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, Specific Plan, plats and the
Improvement Plans, and to facilitate the development of the Property in light of any
changes in development requirements, including an extension of the term of this
Agreement as provided in Section 11.1. If the Developer determines that it would be
beneficial to amend this Agreement to include adjacent lands owned by the
Developer, the Town agrees to consider in good faith such amendment. All
amendments to this Agreement shall be in writing and, if approved, must be signed
by all appropriate 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.
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10.15. 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 any plans; provided,
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however, that in connection with any conveyance of portions of the infrastructure or
facilities as provided in this Agreement such rights pertaining to the portions of the
infrastructure or facilities so conveyed shall be assigned to the extent that such rights
are assignable, to the appropriate governmental authority.
10.16. Good Standing; Authority. The Developer represents and
warrants to the Town that it is duly formed and validly existing under the laws of
Arizona and is authorized to do business in the state of Arizona. The Town
represents and warrants to the Developer that it is an Arizona Municipal Corporation
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
sIgmng.
10.17. 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.
10.18. 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. 9 38-
511. This Agreement has been negotiated 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. 9 12-501 et seq., and judgment upon the
award rendered by the arbitrator(s) may be entered in a court having jurisdiction
thereof.
1
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10.19. 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.
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10.20. No Developer Representations. Except as specifically set
forth herein, nothing contained herein shall be deemed to obligate the Town or the
Developer to complete any part or all of the development ofthe Property.
2
3
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104153.5
10.21. Approval. Ifthe 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.
10.22. Force Maieure. 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 oftheir
departments, agencies, or officials, or of any civil or military authority; insurrection;
civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence;
fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of
people; explosions; and partial or entire failure of utilities. Failure to settle strikes,
lock-outs and other disturbances of employer/employee relations or to settle legal or
administrative proceedings by acceding to the demands of the opposing party or
parties, in either case when such course is in the judgement of the party hereto
unfavorable to such party, shall not constitute failure to use its best efforts to remedy
such a condition.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year written below.
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TOWN OF MARANA
an Arizona municipal corporation
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ATTEST:
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APPROVED AS TO FORM AND AUTHORITY
The foregoing Agreement 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, Esq.
Attorney for Town of Marana
STATE OF ARIZONA
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County of Pima
The foregoing document was sworn to and acknowledged before me the
di.. day of VeTO BER ,2001, by Bobby Sutton, Jr., in his capacity as
Mayor ofthe Town of Marana, an Arizona municipal corporation.
~~
My commissiol2: ~tpires:
3-/7 ""'07
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i ,~, . County 01 Pima
jgJ:,,",,' DIANE MANGIALARDI
'vly APPOintment Expires 03-17-04
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Date:
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H.B. Development Co.,
an Arizona Corporation
By:
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STATE OF ARIZONA
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County of Pima
. , The foregoing document was sworn to and aCknow~ore me the'
;<LJP'1dayof ~~ , 2001, by /jav.lr:I . ,,~CI!Ud-
H.B. Land Development Co., an Arizona corporation.
My commission expires:
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8, . o.tAfiV,cpQbUcSEAL
PATTIE BLAIR
. NOTARrP'JB;..IC. ARIZONA
. '.' PIMA:COUNTY
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104153.5
CONTINENTAL RESERVE
DEVELOPMENT AGREEMENT
EXHIBIT A
LEGAL DESCRIPTIONIMAP OF THE PROPERTY
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51 TE MAP ISHEET Ii~DEX
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LEGAL DESCRIPTION
THE BLOCK PLAT OF CONTINENTAL RESERVE, BLOCKS 1-20 AND
COMMON AREAS A, B, AND C, AS RECORDED IN BOOK 53 OF }~S,
PAGES 35-1 THROUGH 35-10, RECORDS OF PIMA COUNTY ARIZONA.
A-2
CONTThffiNTALRESERVE
DEVELOPMENT AGREEMENT
EXHIBIT B
PLAT RESOLUTION NO. 2000-19
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lVIAR~NA RESOLUTION NO. 2000-19
A RESOLUTION OF THE }vIA YOR AND COUNCIL OF. THE TOWN OF MARAL"\J"A,
ARIZONA, APPROVING THE FINAL BLOCK PLAT FOR CONTINENTAL RESERVE
CONSISTING OF 20 BLOCKS ON APPROXIMA TEL Y 600 ACRES LOCATED WITHIN
THE PIMA F ARtvfS SPECIFIC PLAN IN PORTIONS OF SECTIONS 28 AND 33,
TOWNSHIP 12 SOUTH, RANGE 12 EAST, PARCEL NUMBERS 221-21-7A Al~D 221-26-
4A. SUBMITTED BY CONTINENTAL RESERVE, LLC.
WHEREAS, on May 30m, 1989 the Town of Marana adopted Ordinance 89.20 approving
the Pima Farms Specific Plan; and
WHEREAS, on October 19, 1999 the Town of Marana adopted Resolution 99-101
approving the Preliminary Plat on this project; and
WliEREAS, Steinfeld Trust is the owner o~ approximately 600 acres within the Pima
Farms Specific Plan boundary generally located west of SilverbelI at the Pima Farms Road
alignment in portions of Sections 28 and 33, Township 12 South, Range 12 East; and
WHEREAS, the Marana Planning and Zoning Commission heard from the
representative(s) of the owner, staff, and members of the public at the regular Planning and
Zoning Commission meeting held January 26, 2000 and unanimously voted to recommend
approval of the Continental Reserve Final Block Plat to the Town Council; and
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WHEREAS, Continental Reserve, LLC has filed a Final Block Plat for that property
which consists of 20 Blocks to be developed with a mix of residential and commercial
development, with a joint school and park site and over 180 acres of open space; and
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WHEREAS, the Marana Town Council has heard from the representative(s) of the owner,
staff, and members of the public at the regular Town Council meeting held February 15, 2000
and has determined that the Final Block Plat for Continental Reserve should be approved subject
to conditions listed below.
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NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, that the Continental Reserve Final Block Plat, submitted by Continental
Reserve, LLC for a 20-Block subdivision located within the boundary of the Pima Famls
Specific Plan, west of Silverbell Road at the Pima Farms Road alignment in portions of Sections
28 and 33, Township 12 South, Range 12 East is hereby approved subject to the following
conditions:
1. The maximum allowed density shall be reduced from 2,257 dwelling units to
Marana Rem/Ill/VII No. JU()O.I ,) _
Page 10f3
B-2
1,875 dwelling units. (This appears as a General Note on the Final Block Plat).
2. Homes shall be restricted to a single story where fronting on Wade Road and as
required in the Specific Plan. (This appears as a General Note on the Final Block
Plat).
3. Lot size along Wade Road shall be increased to a minimum of 12,000 sq. ft. (This
appears as a General Note on the Final Block Plat).
4. All homes shall be site-built.
5. Emergency access will be constructed by Continental Reserve, LLC, or its
assignee, as required by emergency services providers on the Continental Reserve
Loop Road. (This appears as a General Note on the Final Block Plat).
6. A revised Block Plat Traffic Impact Analysis, acceptable to the Town Engineer
shall be submitted prior to the submittal of the first Preliminary Plat or
Development Plan.
7. A sidewalk shall be constructed by Continental Reserve, LLC or its assignee,
along the development's frontage on Silverbell Road.
8. Sidewalk and roadway improvements shall be constructed by Continental Reserve,
LLC or its assignee, on Wade Road along the development's frontage, acceptable
to the Town Engineer.
9. Wade Road and the Wade Road/Ina Road intersection improvements shall be
constructed by Continental Reserve, LLC or its assignee, to the satisfaction of
Pima County prior to the occupancy of any building on Phase II of the
development as delineated in the Block Plat Traffic Impact Analysis.
10. Continental Reserve, LLC, or its assignee shall design as warranted and fund a
proportionate contribution to two (2) traffic signals; one (1) at the
Silverbell/Sommerton intersection; one (1) at the Silverbell/Wade intersection, if
warranted.
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11. Continental Reserve, LLC or its assignee shall submit a Traffic Impact Analysis
Addendum verifying conformance with the original Traffic Impact Analysis for
each Block or series of Blocks submitted as a Preliminary Plat and/or
Development Plan.
12. Continental Reserve, LLC, or its assignee, shall update the Block Plat Traffic
Impact Analysis at the end of Phase 1.
13. Continental Reserve, LLC. or its assignee shall fund 50% of a transportation
impact fee study for the Continental Ranch region and shall participate in the
region:.!l fee. In the event no impact fee is adopted, it shall prepare a Traffic
ivbnagement Plan \vhich identifies transportation deficiencies caused by the
development and shall identify mitigation measures for off-site improvements.
The mitigation measures shall be funded by Continental Reserve, LLC or its
assIgnee.
14. The Natural Landscape Area along the west boundary of the Property shall be
Mamnn Resollllioll No. l(J(J(J.I')
Page2of3
B-3
incre::J.sed from fifteen (15) feet to twenty (20) feet.
15. Over forty percent (40%) of the lineal distance of the southern boundary of the
Property shall remain open and without a wall.
PASSED Ai~D ADOPTED by the Mayor and Council of the Town of M ana, Arizona, this 15th
day of February 2000.
ATTEST:
Mayo
BY SUTTON JR.
APPRO V D AS TO FORly!:
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CONTINENTAL RESERVE
DEVELOPMENT AGREEMENT
EXHIBIT C
PARK SITE DESIGN
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CONTllffiNTALRESERVE
DEVELOPMENT AGREEMENT
EXHIBIT D
MAP OF THE PUBLIC ACCESS TRAIL
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