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HomeMy WebLinkAboutResolution 2001-150 pre-annexation and development agreement for all creeds brotherhood and the stardance center F. ANN RODRIGUEZ, RECORDER DOCKET: 11685 RECORDED E~: %~LJ ~ PAGE: 3376 DEPUT~ RECORDER NO. OF PAGES: 26 7995 ROOE ~ SEQUENCE: 20012300783 11/29/2ool SM~RA 16: 12 TOWN OF ~A RES ATTN: TOWN CLERK M~IL 13251 N LON ADAMS RD M~,Q,~NA AS 85653 AMOUNT PAID $ 18.50 MARANA RESOLUTION NO. 2001-150 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING PREANNEXATION AND DEVELOPMENT AGREEMENTS BETWEEN THE TOWN OF MARANA AND LKB, L.L.C., THE TOWN OF MARANA AND ALL CREEDS BROTHERHOOD, INC., AND THE TOWN OF MARANA AND THE STAP_DANCE CENTER, L.L.C. WHEREAS, pursuant to A.R.S. § 9-500.05, the Town is empowered to enter into development agreements relating to property within the municipality and the Marana Town Council has reviewed the three Development Agreements between the Town and LKB, L.L.C., All Creeds Brotherhood, Inc., and The Stardance Center, L.L.C., attached hereto as Exhibits "A," "B" and "C" respectively, and incorporated herein by this reference; 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 these prearmexation and development agreements. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: Section 1. That the Development Agreements attached hereto as Exhibits "A," "B" and "C" are hereby approved. Section 2. That the Mayor is hereby~empowered and directed to execute the attached Pre- Annexation and Development Agreements on behalf of the Town of Marana. PASSED AND ADOPTED by the Mayor and Council of the Town ofMarana, Ahzona, this 20* day of November, 2001. Mayor~O~Bl~Y SUTTON, JR. ! ATTEST: Marana, Arizona Resolution No. 2001-150 Exhibit A Development Agreement Marana, Arizona Resolution No. 2001-150 When recorded, return to: Daniel J. Hochuli, Esq. Hochuli & Benavidez, P.C. 220 E. Wetmore Road, Suite 110 Tucson, AZ 85705 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA AND ALL CREEDS BROTHER-HOOD, INC. - F. ANN RODRIG RECORDER '" RECORDED BY: VLJ DEPUTY RECORDER 7995 ROOE SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 When recorded. return to: Daniel J. Hochuli, Esq. Hochuli & Benavidez, P.C. 220 E. Wetmore Road, Suite 110 Tucson, AZ 85705 ,...-4,:;,"c., . 1 ~T: 11685 PAGE: 3367 NO. OF PAGES: 9 SEQUENCE: 20012300782 11/29/2001 AG 16:12 MAIL AMOUNT PAID $ 10.00 PRE-ANNEXA nON AND DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA AND LKB, L.L.c. Marana!l.KB Prcannexat:on AgtCCr.1Cnl Page 1 of 8 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and LKB, L.L.C., an Arizona limited liability company ("LKB"). \VHEREAS, LKB is the owner ofthe property located within Pima County, Arizona legally described on Exhibit A (the "Property"). LKB and the Town desire that the Property be annexed into the corporate limits of the Town and become an integral part of the Town. NO\V, 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: 1 Annexation. The Town has initiated the annexation process by filing a blank annexation petition with Pima County Recorder consistent with the requirements of Section 9-471 of the Arizona Revised Statutes and all other application laws, ordinances and rules (the "Annexation Laws"), to annex the Property into the Town. The Town shall timely publish, mail and post the required notices and hold one or more public hearings, as required under the Annexation Laws in connection with the annexation of the Property into the Town. Following the public hearing, LKB 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. 2 No Extra Development Fees. In order to induce LKB to enter into this Agreement, the Town agrees that the Town shall not charge LKB 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 defmed 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. 3 Over-Sizing. The Town and LKB agree that: 3.1 Except as provided in subsection 3.2 below, in no event shall the Town require LKB or any of its a:lfiliates to over size any utility lines or other facilities other than water 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 LKB are due. 3.2 In the event that LKB submits a development request to the Town for the Property, the Town may require LKB or any of its affiliates to oversize any Town municipal water lines or facilities so as to be available to serve water to other projects or Marana/lKB Prcannocation Agn::cmcnt Page 2 of 8 properties in the vicinity of the Property. As other parties connect to said oversized municipal water lines or facilities, such parties shall pay their respective projected share proportionate to their use ofthe municipal water line or facility, and LKB shall be reimbursed as set forth in one applicable Water Service Agreement. 4 Public Improvements. As soon as reasonably possible, and at no cost or expense to LKB, the Town shall: 4.1 Install signs on Silverbell Road near Pima Farms Road and both Continental Loop intersections showing the direction to the Lazy K Bar Ranch hotel and resort. 4.2 Work with Pima County to improve the junctions of Silverbell Road, Twin Peaks and Scenic Drive so that those roads intersect at angles that are acceptable to the Town Engineer. 4.3 Close Scenic Drive from Pima Farms Road north to the south boundary of Moonrise Ranch and from the Sahuaro National Park to 100 feet north of the south boundary of the Property, and work toward abandonment of said properties as soon as reasonably possible. 4.4 Improve Pima Farms Road to the Town's standard specifications for paved permanent all-weather access. 4.5 Attempt to procure funding and assistance from Pima County, Arizona for a sewer main line extension to the Property. 5 Ori2inal Z,(min2. 5.1 The land uses 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-l44) 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. 5.2 In the event that a court of competent jurisdiction determines that subsection 5.1 above is not permitted by law, LKB may apply for rezoning of the Property to RR and R -144 under the Town's Land Use and Development Code, and ifthe Town does not grant such rezoning, the Town shall be in breach of this Agreement and LKB Marana'LKB PrcannC'Cation Agn:cmcnt Page 3 of 8 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 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 ofthe Town. 5.4 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 LKB will comply with such ordinance. Notwithstanding the provisions of such noise ordinance, LKB 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 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 'VeIls. The Town acknowledges that LKB now provides water service to the Property from its own wells, and the Town covenants and agrees that LKB will be permitted to continue to do so until such time as LKB is unable to do so, or the Town acquires the LKB water system for just compensation. 7 Financin~. The Town and LKB agree that sanitary sewers, drainage, potable water, traffic circulation and traffic control systems, multi-use paths, landscaping, lighting systems, golf courses, schools and public facilities may be acquired or constructed through the creation of one or more community facilities districts, sanitary districts, municipal improvement districts and combinations thereo~ subject to Town approval and in accordance with applicable law. 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: Ifto the Town: Town of Marana 13251 North Lon Adams Marana, Arizona 85653 Attention: Mike Hein, Town Manager with a copy to: Hochuli & Benavidez, P.C. 220 East Wetmore Road Tucson, Arizona 85705 Attn: Daniel Hochuli, Esq. Ifto LKB: LKB, L.L.C. 790 Panorama Road MaranaILKB PrcannC'(ation AgtCCtncnt Page 4 of 8 Tucson, Arizona 85704 Attn: James Shiner with a copy to: T. Patrick Griffin Haralson, Miller, Pitt & McAnally, P.L. C. One South Church Avenue, Suite 900 Tucson, Arizona 85701 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. 9 Hierarchy of Documents. In the event of a conflict or inconsistency, to the extent permitted by law, this Agreement shall take precedence over the applicable ordinances, rules, regulations, permit requirements, development fees, other requirements, and! or official policies of the Town. 10 Counterparts. This Agreement may be 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. 11 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 of the Property. 14 Time of Essence. Time is of the essence of each of the terms and provisions of this Agreement. tJ: .,...,. 0; ..- ::J: 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 Marana/LKB PrcannC'l:ation AgycCfficnt Page 5 of 8 terminate on the 25th anniversary of such date unless extended by mutual agreement of the parties. Termination of this Agreement shall not affect the zoning ofthe Property. 17 No Partnership: Third Parties. Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between LKB and the Town. No term 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. 18 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 ofthe 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 LKB. 20 Good Standing; Authority. LKB represents and warrants to the Town that (a) LKB 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 executing this Agreement on behalf ofLKB are authorized to do so. The Town represents and warrants to LKB 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. 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 ofthis 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 ofthe 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 of the 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 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 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 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 i:j :3 :3 MaranaILKB Prcannocation Agreement Page 6 of 8 any Status Statement requested by LKB hereunder. The Town shall have no liability for monetary damages to LKB, and transferee or mortgagee, or any other person in connection with, resulting from or based upon the issuance of any Status Statement hereunder. 23 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. 938- 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 Agreement is approved by the Town Council of the Town of Marana. Date: ~. c;0 J c5Jt!;t:; / , TOWN OF MARANA, an Arizona municipal corporation ATTEST: 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 ofthe State of Arizona to the Town of Mar ~""nr'",~ ~ OF~ ~ ~. ~~ ~\"'m"",, ~ ~ ~ S "'l.~~ ~""1~~ :: Pi CORPORATE \. -p ~ .. r- ::: oc::;:IO :I _ - - - - - SSEAL;:: - ~ ~ :it ;:: ~ ~ ~ s ~ "1 ~III"U\\\\~ ~ ~~ ~/Z '\ ~I'~ ~/II,il\\\\~ Daniel J. Hoc u, q. Attorney for Town of Marana Date: II / I b / 0 , I ' . ona limited liability company ~ ? Marana/lKB Prcannocation Agn:cmcnt Page 7 of 8 Its /I'}, IV tlj InlJ mt #18 r/J ~ STATE OF ARIZONA ) ) ss County of Pima ) The foregoing instrument was acknowledged before me this/Mh day of Nf)~emhtr, 2001, by .J4h1tS ~hlnc,,- the ,nl1nn~/1lt ItJcfrJhtJr ofLKB, L.L.C., an Arizona limited liability company, on behalf of said limited iab' ty company. Notarytt do ~ My Commission Expires: @ OFFICIAL SEAL JULIA A. BALDWIN NOTARY PUBLIC - ARIZONA - PIMA COUNTY My Comm. Expires July 1 S, 2003 Marana/[J(B PrcannCl(:arion Agreement Page 8 of 8 EXHIB IT "A" LEGAL DESCRIPTION PARCEL 1: The South Half of the Northwest quarter and the North Half of the Southwest quarter of Section 29, Township 12 South, Range 12 East, Gila and Salt river Base and Meridian, Pima County, Arizona. EXCEPT the North 300.00 feet of the south Half of the Northwest quarter of said Section 29; and EXCEPT a strip of land 3 0 feet wide running along the East side of the above tract and now occupied by Pima County Public Highway No. 255, known as Scenic Drive. PARCEL 2: The North 300 feet of the South Half of the Northwest quarter of Section 29, Township 12 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona. EXCEPT any portion thereoflying within Pima County Public Highway No. 255, known as Scenic Drive. - , ..." 140\85894.001\LKB,LLC\2001111514155600 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by the TOWN OF MARANA, an Arizona nmnicipal corporation (the "Town"), and ALL CREEDS BROTHERHOOD, INC., an Arizona corporation ("All Creeds"). WHEREAS, All Creeds is the owner of the property located within Pima County, Arizona legally described on Exhibit A (the "Property"). All Creeds and the Town desire that the Property be annexed into the corporate limits of the Town and become an integral part of the 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: 1 Annexation. The Town has initiated the annexation process by filing a blank annexation petition with Pima County Recorder consistent with the requirements of Section 9-471 of the Arizona Revised Statutes and all other application laws, ordinances and roles (the "Annexation Laws"), to annex the Property into the Town. The Town shall timely publish, mail and post the required notices and hold one or more public hearings, as required under the Annexation Laws in connection with the annexation of the Property into the Town. Following the public hearing, All Creeds 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. 2 No Extra Development Fees. In order to induce All Creeds to enter into this Agreement, the Town agrees that the Town shall not charge All Creeds any development fees, impact fees or growth fees pursuant to A.R.S. § 9-463.05 or otherwise (hereina~er 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. § 9-463.05. 3 Original Zoning. 3.1 The land uses that are lawfully conducted on the Property in Pima County prior to annexation translate to the R- 144 Residential (R-144) Zone in the Town's Land Use and Development Code with legal nonconforming uses consistent with the historical use of the of the Property for sanctuary or spiritual retreat, prayer groups, church services, memorial services, bar mitzvahs, quincieneras, hiking, mediation retreats, music and dance performances and other uses which are legal nonconforming uses 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 MarallaiSmrdan~Ccnt~ p ..... llor, Asr .... Page 2 of 7 prior to annexation. In order to establish original Town zoving which is consistent with the current lawful uses of the Property, upon annexation the Town shall impose the R- 144 Residential ( R- 144) Zone on the Property. 3.2 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 atter the Property is annexed into the corporate, jurisdictional and geographic limits of the Town. 3.3 The noise and sound levels permStted or exempted in Pima County shall be allowed on the Property until the Town adopts a noise ordinance, at which time All Creeds will comply with such ordinance. Notwithstanding the provisions of such noise ordinance, All Creeds shall be permitted maxinmm average levels for amplified music of at least 55 decibels fi:om 7:00 a.m. to 10:30 p.m., and 50 dec,els fi:om 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. 4 Wells. If All Creeds now provides water service to the Property from its own wells, the Town covenants and agrees that All Creeds will be permitted to continue to do so until such time as All Creeds is unable to do so, or the Town acquires the All Creeds water system for just compensation. 5 Financing. The Town and All Creeds agree that sanitary sewers, drainage, potable water, traffic circulation and traffic control systems, multi-use paths, landscaping, lighting systems, golf courses, schools and public facilities may be acquired or constructed through the creation of one or more community facilities districts, sanitary districts, municipal improvement districts and combinations thereof~ subject to Town approval and in accordance with applicable law. 6 Notices. All notices, filings, consents, approvals and other conanunications 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: Town of Marana 13251 North Lon Adams Marana, Arizona 85653 Attention: Mike Hein, Town Manager with a copy to: Hochuli & Benavidez, P.C. 220 East Wetmore Road Tucson, Arizona 85705 Atto Dani 1 Ho h li E q Page 3 of 7 If to All Creeds: All Creeds Brotherhood, Inc. 8001 North Scenic Drive Tucson, Arizona 85743 Attn: Chuck Koesters 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 del/very, 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. 7 Hierarchy of Documents. In the event of a conflict or inconsistency, to the extent permitted by law, this Agreement shall take precedence over the applicable ordinances, roles, regulations, permit requirements, development fees, other requirements, and/or official policies of the Town. 8 ~. This Agreement may be 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 fi-om such counterparts and such signature pages all attached to a single instrument so that the signatures of all parties may be physically attached to a single document. 9 ~. 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. 10 Exhibits and Recitals. Any exh~it 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. 11 Further Acts. Each of the parties hereto shall promptly execute and deliver all such documents and perform all such acts as reasonably necessary, fi:om 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. 12 Time of Essence. Time is of the essence of each of the terms and provisions of this Agreement. 13 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. 14 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 terminate on the 250' anniversary of such date tmless extended by mutual agreement of the parties. Termination of this Agreement shall not affect the zoning oftbe Property. 15 Mo Partnership: Third Parties. Nothing contained in this Agreement shall create any parmership, joint venture or other arrangement between All Creeds and the Town. No term 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 ofactinn hereunder. 16 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. 17 Amendment. This Agreement may be amended only by a written amendment executed by the Town and All Creeds. 18 Good Standing: Authority. All Creeds represents and warrants to the Town that (a) All Creeds 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 executing this Agreement on behalf of All Creeds is authorized to do so. The Town represents and warrants to All Creeds 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. 19 Severabilitv. 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 impermiss~le 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 impermiss~le restriction of the 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. 20 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 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 nature and tatement" . amount of any such defaults (a "Status S ) 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 All Creeds hereunder. The Town shall have no liability for monetary damages to All Creeds, and transferee or mortgagee, or any other person in M~n~s~,~,~ c~ ~x.~o~^~ Page 5 of 7 connection with, resulting fi.om or based upon the issuance of any Status Statement hereunder. 21 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 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 Agreement is approved by the Town Council of the Town of Marana~ Date: TOWN OF MARANA, an Arizona municipal corporation ATTEST: 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 Mamna Date: ALL CREEDS BROTHERHOOD, INC., an Arizona corporation By Its STATE OF ARIZONA ) ) ss County of Pima ) The foregoing instrument was acknowledged before me this __ day of ,2001, by the of All Creeds Brotherhood, Inc., an Arizona corporation, on behalf of said corporation. Notary Public My Commission Expires: ~.zs~,~.~=c..~ pr~*x~on^~m~, Page 7 of 7 When recorded, return to: Daniel J. Hochuli, Esq. Hochuli & Benavidez, P.C. 220 E. Welmore Road, Suite 110 Tucson, AZ 85705 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA AND STARDANCE CENTER, L.L.C. M~S~aa~Ctn,~ P ..... ~o~A~,~, Page 1 of 8 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by the TOWN OF MARANA, an Arizona nxmicipal corporation (the "Town"), and THE STARDANCE CENTER, L.L.C., an Arizona limited liability company ("Stardance"). WHEREAS, Stardance is the owner of the property located within Pima County, Arizona legally descried on Exhibit A (the "Property"). Stardance and the Town desire that the Property be annexed into the corporate 1/mits of the Town and become an integral part of the 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: 1 Annexation. The Town has initiated the annexation process by filing a blank annexation petition with Pima County Recorder consistent with the requirements of Section 9-471 of the Arizona Revised Statutes and all other application laws, ordinances and rules (the "Annexation Laws"), to annex the Property into the Town. The Town shall timely publish, mail and post the required notices and hold one or more public hearings, as required under the Annexation Laws in connection with the annexation of the Property into the Town. Following the public hearing, Stardance 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. 2 No Extra Development Fees. In order to induce Stardance to enter into this Agreement, the Town agrees that the Town shall not charge Stardance any development fees, impact 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, adminish'ative 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. 3 Over-Sizing. The Town and Stardance agree that: 3.1 Except as provided in subsection 3.2 below, in no event shall the Town require Stardance or any of its aff'fliates to over size anyutility lines or other facilities other than water 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 Stardance are due. Marmla/S~ardan~ Cent~, ~e. xafioiI A~.~m~all Page 20 f 8 3.2 In the event that Stardance submits a development request to the Town for the Property, the Town may require Stardance or any of its affiliates to oversize any Town municipal water lines or facilities so as to be available to serve water to other projects or properties in the vicinity of the Property. As other parties connect to said oversized municipal water lines or facil/ties, such parties shall pay their respective projected share proportionate to their use of the municipal water line or facility, and Stardance shall be reimbursed as set forth in one applicable Water Service Agreement. 4 Pu h'c Imr veto nts. As soon as reasonably possible, and at no cost or expense to Stardance, the Town shall: 4.1 Install signs on Silverbell Road near Pima Farms Road and both Continental Loop intersections showing the direction to The Stardance Center. 4.2 Work with Pima County to improve the junctions of Silverbell Road, Twin Peaks and Scenic Drive so that those roads intersect at angles that are acceptable to the Town Engineer. 4.3 Close Scenic Drive fi-om Pima Farms Road north to the south boundary of Moom'ise Ranch and fromthe Sahuaro National Park to 100 feet north of the south boundary of the Property, and work toward abandonment of said properties as soon as reasonably possible. 4.4Improve Pima Farms Road to the Town's standard specifications for paved penmanent all-weather access. 4.5 Attempt to procure funding and assistance fi:om Pima County, Arizona for a sewer main line extension to the Property. 5 Ori~linal Zoning. 5.1 The land uses 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 an events and entertainment facility and related activities is a legal nonconforming use under the ex/sting Suburban Ranch (SR) Zone in Pima County. The amexation laws require the Town to translate the zoning for the Property fi:om 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. Page 3 of 8 5.2 In the event that a court of competent jurisdiction determines that subsection 5.1 above is not permitted by law, Stardance may apply for rezoning 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 Stardance 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 activities conducted on the Property in Pima Countyprior 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. 5.4 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 Stardance will comply with such ordinance. Notwithstanding the provisions of such noise ordinance, Stardance shall be permitted maximum average levels for amplified music of at least 55 decibels fi'om 7:00 0_rc~ to 10:30p.m~, and 50 decibels fi.om 10:30p.m. to 7:00 a.m. Dec,el limits will not apply to human voices that are not electronically amplified, and will be as measured at the property line. 6 Wells. If Stardance now provides water service to the Property from its own wells, the Town covenants and agrees that Stardance will be permitted to continue to do so until such time as Stardance is unable to do so, or the Town acquires the Stardance water system for just compensation. 7 Financing. The Town and Stardance agree that sanitary sewers, drainage, potable water, traffic circulation and traffic control systems, multi-use paths, landscaping, 1/ghting systems, golf courses, schools and public facilities may be acquired or constructed through the creation of one or more community facilities districts, sanitary districts, municipal improvement districts and combinations thereof, subject to Town approval and in accordance with applicable law. 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 del/vered 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: Town of Mamna 13251 North Ion Adams Marana, Arizona 85653 Attention: Mike Hein, Town Manager ._~ with a copy to: Hochuli & Benavidez, P.C. 220 East Wetmore Road Tucson, Arizona 85705 M~S~d~n~Ccn~ ~ ..... ~o~^v~ Page 4 of 8 Atto: Daniel Hochuli, Esq. If to Stardance: The Stardance Center, L.L.C. 9805 North Sagebrush Place Tucson, Arizona 85741 Attn: Debbie Ferns with a copy to: LKB, L.L.C. 790 Panorama Road Tucson, Arizona 85704 Attn: James Shiner or to such other addresses as either party hereto may fi.om 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. 9 Hierarchy of Documents. In the event of a conflict or inconsistency, to the extent permitted by law, this Agreement shall take precedence over the applicable ordinances, roles, regulations, permit requirements, development fees, other requirements, and/or official policies of the Town. 10 Counterparts. This Agreement may be 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 fi.om one or more counterparts may be removed fi.om such counterparts and such signature pages all attached to a single instrument so that the signatures o fall parties may be physically attached to a single document. 11 Headin__gs_. 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 exlmbit 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 confu-m 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, fi.om 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 ks of the essence of each of the terms and provksions of this Agreement. Page 5 of 8 15 In__m!!:effig~. 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 terminate on the 25a anniversary of such date unless extended by mutual agreement of the parties. Termination of this Agreement shall not affect the zoning of the Property. 17 No Partnership: Third Parties. Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between Stardance and the Town. No term 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. 18 ~. 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 Stardance. 20 Good Standing: Authority.. Stardance represents and warrants to the Town that (a) Stardance 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 executing this Agreement onbehalfofStardanceis authorized to do so. The Town represents and warrants to Stardance 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. 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 impermiss~le 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 of the 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 Status Statements. Any party to this agreement (the "requesting party") may, at any time, and fi.om 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 of the parties, (b) this Agreement has not been amended or modified either orally or in writing, and if so amended, M,~s~e~=cc~t~ ~,~o~^~ Page 6 of 8 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 Stardance hereunder. The Town shall have no liability for monetary damages to Stardance, and transferee or mortgagee, or any other person in connection with, resulting fi.om or based upon the issuance of any Status Statement hereunder. 23 Governine 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 ofA.R.S. § 38- 511. 1N WITNESS WHEREOF, the parties have exe6uted 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. Date: TOWN OF MARANA, an Arizona municipal corporation ATTEST: By Mayo~~ Town Clerk APPROVED AS TO FORM AND AUTHORITY The foregoing Agreement has been reviewed by the undersigned attorney i who has determined that it is in proper 1 form and within the power and authority ~3 granted under the laws of the State of ..o_.. Arizona to the Town of Marana. r.z Daniel J. Hochuli, Esq. 3 Attorney for Town of Mamna 9 Page 7 of 8 Date: THE STAP, DANCE CENTER, L.L.C., an Arizona limited liability company By Its STATE OF ARIZONA ) ) ss County of Pima ) The foregoing instrument was acknowledged before me this day of ,2001, by the of The Stardance Center, L.L.C., an Arizona limited liability company, on behalf of said limited liability company. Notary Public My Commission Expires: Page 8 of 8 When recorded, return to: Dan~lJ. HochuS, Esq. Hochuli&Benavidez, P.C. 220 E. Wetmore Road, Suite 110 Tucson, AZ85705 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA AND LKB, L.L.C. M~C.X~ ....... ~.^g ...... Page 1 of 8 PRE-ANNEXATION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and LKB, L.LC., an Arizona limited liability company ("LKB"). WHEREAS, LKB is the owner of the property located within Pima County, Arizona legally described on Exhibit A (the "Property"). LKB and the Town desire that the Property be annexed into the corporate 1/mits of the Town and become an integral part of the 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: 1 Annexation. The Town has initiated the annexation process by filing a blank annexation petition with Pima County Recorder consistent with the requirements of Section 9-471 of the Arizona Revised Statutes and all other application laws, ordinances and roles (the "Annexation Laws"), to annex the Property into the Town. The Town shall timelypublish, mail and post the required notices and hold one or more public heatings, as required under the Annexation Laws in connection with the annexation of the Property into the Town. Following the public hearing, LKB 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. 2 No Extra Develonment Fee~. In order to induce LKB to enter into this Agreement, the Town agrees that the Town shall not charge LKB any development fees, impact 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, 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 infi'astmcture as contemplated by A.R.S. § 9-463.05. 3 Over-Sizing. The Town and LKB agree that: 3.1 Except as provided in subsection 3.2 below, in no event shall the Town require LKB or any of its aff'fliates to over size any utility lines or other facilities other than water 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 util/ty line or other facility based on projected use, or (ii) the oversizing cost. The third party payment must be remitted on or before anypayments by LKB are due. 3.2 In the event that LKB submits a development request to the Town for the Property, the Town may require LKB or any of its affiliates to oversize any Town municipal water lines or facilities so as to be available to serve water to other projects or Page 2 of 8 properties in the vicinity of the Property. As other parties connect to said overs/zed municipal water lines or facilities, such parties shall pay their respective projected share proportionate to their use of the municipal water line or facility, and LKB shall be reimbursed as set forth in one applicable Water Service Agreement. 4 Public Improvements. As soon as reasonably possible, and at no cost or expense to LKB, the Town shall: 4. I Install signs on Silverbell Road near Pima Farms Road and both Continental Loop intersections showing the direction to the Lazy K Bar Ranch hotel and resort. 4.2 Work with Pima County to improve the junctions of Silverbell Road, Twin Peaks and Scerdc Drive so that those roads intersect at angles that are acceptable to the Town Engineer. 4.3 Close Scenic Drive fi.om Pima Farms Road north to the south boundary of Moonrise Ranch and fi'om the Sahuaro National Park to 100 feet north of the south boundary of the Property, and work toward abandonment of said properties as soon as reasonably possible. 4.4 Improve Pime Farms Road to the Town's standard specifications for paved permanent all-weather access. 4.5 Attempt to procure funding and assistance from Pima County, Arizona for a sewer main l/ne extension to the Property. 5 Or_.Q~mal Zo nin__~g. 5.1 The land uses that are lawfully conducted on the Property in Pima County ptior 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 fi.om 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 wh/ch 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. 5.2 In the event that a court of competent jurisdiction determ/nes that subsection 5.1 above is not permitted by law, LKB may apply for rezoning 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 LKB Page 3 of 8 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 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 ale al non- conforming uses at%r the Property is annexed ;,-~ *~ ......... g · geographic limits of the Town. ~ ,,,,v Lac corporate, junsa~ct~onal and 5.4 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 LKB will comply with such ordinance. Notwithstanding the provisions of such noise ordinance, LKB shall be permftted maximum average levels for amplified music of at least 55 decibels fi.om 7:00 am. to 10:30 p.m., and 50 decibels from 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 LKB now provides water service to the Property from its own wells, and the Town covenants and agrees that LKB will be permitted to continue to do so until such time as LKB is unable to do so, or the Town acquires the LKB water system for just compensation. 7 Financing. The Town and LKB agree that sanitary sewers, drainage, potable water, traffic circulation and traffic control systems, multi-use paths, landscaping, lighting systems, golf courses, schools and public facil/ties may be acquired or constructed through the creation of one or more community facilities districts, sanitary districts, municipal improvement districts and combinations thereot~ subject to Town approval and in accordance with applicable law. 8 Notices. Ali notices, filings, consents, approvals and other communications provided for in this Agreement or given in connection herewith shali be validly given, fried, 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: Town of Marana 13251 North Lon Adams Marana, Arizona 85653 Attention: Mike Hein, Town Manager with a copy to: Hochuli & Benavidez, P.C. 220 East Wetmore Road Tucson, Arizona 85705 Atto: Daniel Hochuli, Esq If to LKB: LKB, L.L.C. 790 Panorama Road Tucson, Arizona 85704 Attu: James Shiner with a copy to: T. Patrick Griffin Haralson, Miller, Pitt & McAnally, P.L.C. One South Church Avenue, Suite 900 Tucson, Arizona 85701 or to such other addresses as either party hereto may from time to time designate ha writhag and del/very 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 given by mail shah be deemed delivered forty-eight (48) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above. 9 Hierarchy of Documents In the event of a conflict or inconsistency, to the extent permitted by law, this Agreement shall take precedence over the applicable ordinances, rules, regulations, permit requirements, development fees, other requirements, and/or official policies of the Town. 10 ~. This Agreement may be 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 fi.om one or more counterparts may be removed fi.om such counterparts and such signature pages all attached to a single hastmment so that the signatures of all parties may be physical/y attached to a single document. 11 eallg~!.i~. The descriptive headings of the paragraphs of this Agreement are inserted for conveniemce 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 beg/.nnlng 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 contingeocies set forth in this Agreement are critical ha the development of the Property. 14 Time f Ess nee. Time is of the essence of 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 the/r 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 M~XB ~,~n^~, Page 5 of 8 terminate on the 25t~ anniversary of such date unless extended by mutual agreement of the parties. Termination of this Agreement shall not affect the zoning of the Property. 17 No Partnership: Third Parties Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between LKB and the Town. No term or provision of this Agreement is intended 6r shall be for the benefit of any person, organization or entity not a party hereto, and no such other person, orgarfization or entity shall have any right to cause of action hereunder. 18 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof. Ail 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 LKB. 20 Good Standing: Authority. LKB represents and warrants to the Town that (a) LKB 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 executing this Agreement on behalf of LKB are authorized to do so. The Town represents and warrants to LKB 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 ti'tis Agreement on behalf of the Town are author/zed to do so. 21 Severability. 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 acknowledge and agree that, although the parties believe that the terms and conditions contained in this Agreement do not constitute an impermiss~le restriction of the police power of the Town, and that it iq 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 of the 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 ail such power and authority that cannot be restricted by contract. 22 Status Statements. Any party to this agreement (the "requesting party") may, at any time, and fi.om 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 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 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 anyAssistant Town Manager shall have the right to execute any Stares Statement requested by LKB hereunder. The Town shall have no liability for monetary damages to LKB, and transferee or mortgagee, or any other person in connection with, resulting bom or based upon the issuance of any Stares Statement hereunder. 23 Governing Law. Tins Agreement shall be govemed by and construed in accor~Jance with ire 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 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 Agreement is approved by the Town Council of the Town of Marana. Date: TOWN OF MARANA, an Arizona municipal corporation ATTEST: Town Clerk 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 Date: LKB, L.L.C., an Arizona limited liabil/ty company By. Page 7 of 8 Its STATE OF ARIZONA ) ) ss County o f Pima ) The foregoing instrument was acknowledged before me by __ this · ' "~"' -- · · ofLKB, L.L.C., an ArizOna My Commission Expires: Notar~