HomeMy WebLinkAboutFianchetto Farms DA 08/16/2005 Amended at the meeting
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Councilor by Town Staff) (collectively the "Marana Development Code"), 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, commercial and recreation/open space opportunities.
H. This Agreement is consistent with the portions of the Town's General Plan applicable to
the Property.
Water Background
I. The provisions of this Agreement relating to water service are entered into and authorized
by Title 14 of the Marana Town Code as it may be amended from time to time (the "Marana
Municipal Water Code").
J. The Developer desires for the Town to provide water service to the Project.
K. To secure water service from the Town for the Project, the Developer proposes to in-stall
those certain water infrastructure improvements referred to in this Agreement as the "Developer-
Installed Water Facility."
L. The required plans, specifications, and materials for the Developer-Installed Water
Facility have been approved by the Town.
M. The Developer desires that the Town take ownership of, operate, and service the
Developer-Installed Water Facility
N. The Town is willing to accept the Developer-Installed Water Facility and permit it to be
connected to the Town water system provided it meets Town standards and the work is done in
accordance with Town requirements.
Development Impact Fees Background
O. The Town has adopted certain development impact fees for roads and regional parks, and
anticipates adopting a gravity storage and renewable resource development impact fee and a
water system infrastructure development impact fee, pursuant to A.R.S. S 9-463.05.
P. The Developer will be entitled to credit pursuant to A.R.S. S 9-463.05(B)(3) toward the
payment of the Town's adopted development impact fees based on the required dedication of
lands and improvements for public regional parks, arterial roadways, water gravity storage and
renewable water resources and water system capacity infrastructure provided or to be provided
by the Developer in connection with the development of the Project.
Q. The Parties desire to memorialize their agreement concerning the amount of the
development impact fee credit applicable to the Project, based on anticipated developer-financed
infrastructure.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and
agreements set forth in this Agreement, the Parties hereby agree as follows:
Article 1. Development Plans.
1.1. Development review. The Property shall be developed in a manner consistent with the
development regulations that now apply to the Property and this Agreement, which together
establish the basic land uses, and the densities, intensities and development regulations that apply
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to the land uses authorized for the Property. Upon the Developer's compliance with the
applicable development review and approval procedures and substantive requirements of the
development regulations that now apply to the Property, the Town agrees to issue such permits
or approvals for the Property as may be requested by the Developer.
1.2. Zoning and plat conditions. The Developer agrees to fulfill all conditions outlined in the
Development Regulations.
1.3. Special Proiect character. An individual identity for the project and consistency with the
Northwest Marana Area Plan shall be fostered by the use of special landscape and design
treatments at project entry ways and perimeter walls.
1.4. Guest parking. If on-street parking is limited or prohibited, no fewer than one space per
dwelling unit guest parking shall be provided throughout the Project.
1.5. A vigation easement and noise attenuation. Developer shall record an avigation easement
and shall provide noise attenuation as part of the design and construction of homes in the Project
so that a maximum interior noise level of 45 decibels is achieved within each home.
1.6. Determination of no hazard to air navigation. Those portions of the Property located
within 20,000 feet (3.8 miles) of Marana Northwest Regional Airport shall submit an FAA-7460
form to the Federal Aviation Administration and receive a "Determination of No Hazard to Air
Navigation" from the Federal Aviation Administration before any construction or alteration of
greater height than an imaginary surface extending outward and upward at a 100 to 1 slope for a
horizontal distance of 20,000 feet from the nearest point of the nearest runway of the Airport.
1.7. Archaeological/historic resources. Development of the Property shall meet all Town
requirements set forth in Title 2 and Title 20 of the Marana Development Code related to
Archeological and Historic Resources.
1.8. Site built construction and building permits. All construction on any portion of the
Property, whether sold in bulk or individually, whether subdivided or not, shall be site built and
shall require building permits.
1.9. Compliance with residential design standards. All residential construction on any
portion of the Property shall be constructed in accordance with the August 5, 2005 draft of the
residential design standards until Town residential design standards have been adopted and have
gone into effect.
Article 2. Water.
2.1. Conversion of irrigation water rights. Within sixty days after the effective date of this
Agreement or sixty days after the Property ceases to be used for farming, whichever occurs last,
the Developer shall convert all irrigation water rights for the Property to Type I non-irrigation
water rights.
2.2. Transfer of water rights to the Town. Within sixty days after approval of the final plat
for the Project, the Developer shall transfer to the Town, in a manner prescribed by the Arizona
Department of Water Resources, all water rights on lands dedicated to the Town. On lands not
dedicated to the Town, the Developer shall transfer extinguishment credits to the Town, in a
manner prescribed by the Arizona Department of Water Resources, upon request by the Town.
2.3. Water service. The Town shall provide a designation of assured water supply and water
service to the Property.
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2.4. Irrigation system. In compliance with the Northwest Marana Area Plan, the Developer
shall develop and construct a secondary non-potable irrigation system, dedicated to the Town, to
distribute irrigation water to common areas, parks, roadway landscaping areas and each
individual lot throughout the Property. If approved in writing by the Town Manager, the
secondary non-potable irrigation system may be modified to serve only common areas, parks,
roadway landscaping areas and similar areas of the Property.
2.5. Cortaro Marana Irrigation District ("CMID"). The Developer will work with CMID to
enter into a formal agreement concerning the construction and maintenance of necessary
irrigation systems and well sites to perpetuate CMID's ability to serve its customers, including
without limitation any necessary under-grounding of CMID canals at the Developer's cost.
Potential buyers shall be notified that the Property is subject to taxation by CMID.
2.6. Fair-share water delivery infrastructure contribution. The Developer shall pay its fair
share of the costs of water projects that directly serve the Property, currently estimated to total
$86,273.00, determined as follows:
2.6.1.9.97% of the total cost of the Civic Center Loop water main project.
2.6.2. 9.97% of the total cost of the Ora Mae Harn Park to Lon Adams water main
proj ect.
2.6.3. 9.97% of the total cost of the sixteen-inch water main from Civic Center Loop to
Clark Farms Boulevard to Sandario Road.
2.6.4. 14.96% of the total cost of the sixteen-inch water main in Clark Farms Boulevard
from Sandario Road to the eastern boundary of the west half of Section 28, Township 11
South, Range 11 East, Gila and Salt River Base and Meridian.
2.7. General provisions relating to water service
2.7.1. Developer installation of the Developer-Installed Water Facilitv. The Developer
has designed and shall install, at Developer's own expense, the water infrastructure
improvements necessary to serve the Project in accordance with water plans submitted to and
approved by the Town of Marana Water Utility (the "Facility Plan"). The water infrastructure
improvements to be depicted on the Facility Plan are referred to in this Agreement as the
"Developer-Installed Water Facility," and shall conform to the design standards of the City
of Tucson Water Department and the Town of Marana Municipal Water Code and special
specifications and details as approved by the Town and by this reference made a part of this
Agreement. The Facility Plan shall include a plan note identifying the Developer-Installed
Water Facility as a new water facility and shall show any and all alterations to the existing
water system. Construction and installation of the Developer-Installed Water Facility in
accordance with the Facility Plan, including without limitation all labor, materials, equipment,
supplies, and tools required for the construction and installation, is referred to in this
Agreement as the "Water Work."
2.7.2. Description of the Developer-Installed Water Facilitv. At a minimum, the
Developer-Installed Water Facility shall include all of the following:
2.7.2.1. All water infrastructure required to distribute and serve water within the
Property.
2.7.2.2. The extension of the sixteen-inch water main in Clark Farms Boulevard from
the eastern boundary of the west half of Section 28, Township 11 South, Range 11 East,
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Gila and Salt River Base and Meridian to the existing eight-inch water main in Sanders
Road. The Developer shall coordinate with the developer of the Payson Farms
development regarding the construction and fair-share costs of this segment of water
infrastructure.
2.7.2.3. An eight-inch water main connection to the sixteen-inch water main
described in the preceding paragraph, extending through all streets in the Project, and
looping into the Honea Heights water system via eight-inch interconnects south of Moore
Road in a minimum of two locations. To the extent the eight-inch connection to the
sixteen-inch water main described in the preceding paragraph is located on the Payson
Farms project, the Developer shall coordinate with the developer of the Payson Farms
development regarding the construction and fair-share costs.
2.7.3. Water Work by licensed contractor. The Water Work shall be performed by a
contractor properly licensed by the State of Arizona as determined by the Arizona Registrar
of Contractors. In addition to any other contractor's license classifications required by the
Arizona Registrar of Contractors, the contractor shall hold contractor's license classifications
A, A-12 and A-16.
2.7.4. Lump-sum connection fee payment. Before any service connections are made from
the Town's water system to the Developer-Installed Water Facility, the Developer shall pay
to the Town a lump-sum payment of $98,496.00 for Developer's fair-share non-participating
connection fees (calculated based on 114 lots at $864.00 per lot) and any other fees required
by the Marana Municipal Water Code.
2.7.5. Installation charges. In addition to the lump-sum connection fee payable pursuant
to paragraph 2.7.4 above, the Developer or its successor in interest shall pay the then-
applicable installation charges for all water service connections. Under Town Code
Section 14-7-2, the total charge for each five-eighths-inch water meter to be installed on the
Property is currently $900.00.
2.7.6. Developer-Installed Water Facility acceptance by Town. No service connections
shall be made from the Town's water system to the Developer-Installed Water Facility until
the Developer-Installed Water Facility has been accepted by the Town in accordance with the
Marana Municipal Water Code.
2.7.7. Frontage requirement. Any property connecting onto a water main shall have a
minimum of fifteen feet of frontage on that main. A water easement or other utility easement
shall not constitute frontage for purposes of this paragraph.
2.7.8. Meter application requirements. A meter application will be accepted only if the
property to be served fronts the waterline. Only one water meter application will be allowed
per legal description unless the property owner can provide the Town with plans indicating
the type of improvement or development taking place on the land that justifies more than one
meter. If any portion of the property served by the water meter is sold, the owner of the
portion of land that fronts the water main shall have all rights associated with the water meter
unless other arrangements are made with and approved by the Town of Marana Water Utility
prior to the sale.
2.7.9. Developer's certification. By execution of this Agreement, Developer certifies that
it shall comply with the Facility Plan and all other specifications applicable to the Water
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Work and agrees with and approves the location of all service lines as depicted on the
Facility Plan.
2.7.10. Termination for lack of Water Work. Approval of the Facility Plan shall lapse if
more than one year has passed since the date of the Facility Plan's approval and the Water
Work has not begun, or if the Water Work is discontinued for a period of one year.
2.8. Engineering and Inspection of Water Work
2.8.1. Registered civil engineer. The Developer shall employ a registered civil engineer
to design, layout, establish control lines for and certify the layout of the Water Work
according to the Facility Plan.
2.8.2. Town inspector's authority. Any inspector authorized by the Town shall have full
inspection authority over the Water Work.
2.8.3. Inspection provisions. The Developer shall furnish the Town's inspector with all
facilities reasonably necessary to inspect the Water Work. The Water Work shall be subject
to Town inspection at all times. Defective Water Work shall be corrected in a manner
satisfactory to the Town's inspector. Inspection by the Town is for the purpose of ensuring
compliance with plans and specifications only. The Town makes no guarantee as to the
safety or engineering soundness of plans prepared by Developer or any contractor.
2.8.4. Payment of Town inspector's overtime cost. If scheduling by Developer's
contractor reasonably requires the Town's inspector to work overtime, the Developer or
Developer's contractor shall pay the Town for any additional salaries, expenses or employee
benefits relating to the overtime. For purposes of this paragraph, overtime is any time over
forty hours worked in a seven-day work period, any time over eight hours worked Monday
through Friday, and any time worked on weekends and legal holidays observed by the Town.
2.9. Preconstruction procedure for Water Work
2.9.1. Request to begin construction. The Developer shall submit a written request to
begin construction to the Town five working days before the Water Work is to commence.
2.9.2. Construction permit. A construction permit for the Water Work shall not be issued
prior to the effective date of this Agreement.
2.9.3. Start and completion of the Water Work. No portion of the Water Work shall begin
until the Town has issued a construction permit specifying the starting date and a reasonable
time for completion.
2.9.4. Progress of the Water Work. The Water Work shall be commenced and carried on
at such points and in such order as may be directed by the Town.
2.9.5. Materials sampling and testing. Materials shall be available for sampling and testing
by the T own prior to being used in the Water Work. Materials that fail to meet Town
specification shall be removed from the site.
2.9.6. Permits and approvals. The Developer shall, at Developer's expense, obtain all
necessary permits and licenses for the Water Work, pay all fees and comply with all laws,
ordinances and regulations relating to the Water Work.
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2.10. Construction of Water Work
2.10.1. Developer's presence on site. The Developer, or Developer's designated agent,
shall be present at all times during performance of the Water Work. The name of the
Developer's designated agent and the contractor performing the Water Work shall be
furnished to the Town before the Water Work begins. Instructions given by the Town to the
designated agent shall be deemed to have been given to the Developer.
2.10.2. Competence and diligence. The Developer shall employ only competent and
efficient laborers, mechanics or artisans on the Water Work, and the Developer agrees to
perform the Water Work diligently to complete the Water Work on or before the completion
date given in the notice to proceed.
2.10.3. Paving. The Developer shall identify and locate all water valves prior to paving
and set valve boxes to final grade after paving.
2.10.4. Alterations to the existing Town water system. The Developer shall, at
Developer's expense, make any and all alterations to the existing water system either on-site
or off-site necessitated by paving, drainage, or other improvements caused by the
development of the Property.
2.10.5. Worksite safety. The Developer shall require all contractors and subcontractors
performing any portion of the Water Work to comply with all safety requirements of the
Occupational Safety and Hazards Act as set forth by the Federal Government and as
implemented by the State of Arizona. The Developer or its contractors shall be solely
responsible for all fines or other penalties provided for by law for any violations of the
Occupational Safety Hazards Act.
2.11. Dedication of the Developer-Installed Water Facility
2.11.1. Transfer of the Developer-Installed Water Facility to the Town. Upon the Town's
final acceptance of the Water Work, the Developer shall at no cost grant, bargain, sell,
convey, transfer and deliver to the Town the Developer-Installed Water Facility free and
clear of all liens, claims, charges or encumbrances.
2.11.2. Two-year warranty. The Developer guarantees the Water Work to be free from all
failures due to poor workmanship or materials for a period of two years from the date of the
Town's final acceptance of the Water Work.
2.11.3. Other conflicting construction prohibited. The Developer shall not construct or
allow the construction of any utility, building, or other improvement that would interfere
with the operation or maintenance of the Developer-Installed Water Facility.
2.11.4. Developer's obligation to maintain finished grade. The Developer guarantees that
all service lines, meters, and meter boxes on the Property will be to finished grade and that
Developer will remain responsible for raising or lowering said services as required until the
Property is fully developed.
2.11.5. Acceptance by the Town. The Town shall accept title to and take possession of
the Developer-Installed Water Facility when the Water Work has been completed to the
satisfaction of the Town. Subject to the Developer's continuing obligations under this
Agreement, the Town shall operate and service the Developer-Installed Water Facility after
taking over possession of it under this paragraph.
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Article 3. Other Public Facilities and Infrastructure Requirements.
3.1. Wastewater. The Developer shall construct the necessary sewer system to serve the
Property. The sewer system shall be in conformance with, and subject to, the requirements of
Pima County Wastewater Management and the Town, and shall be designed and constructed at
sole cost of the Developer.
3.2. Onsite private recreational facilities. Within each platted block or parcel, private
recreational facilities shall be constructed on a site of not less than 185 square feet per residential
uni t. Site and facility design shall be approved by the Town Parks & Recreation Director and
Planning Director.
3.3. Roadway improvements: The Developer shall construct to Town specifications right-
turn lanes on westbound Moore Road at all Project entrances as recommended in the traffic
impact analysis prepared for the Project.
3.4. School facility contribution. The Owner or its assignee shall contribute $1,200 per
residential unit ("School Fee") due and payable to the Marana Unified School District upon the
issuance of the residential building permit. In the event that the Town or the Marana Unified
School District adopts an impact fee for schools in the future, the School Fee shall be credited to
such future fees.
3.5. Bank protection. In compliance with condition 17 of the Rezoning and Town Ordinance
No. 99.02, Developer shall pay $500.00 per acre of affected Property for bank protection. The
total obligation of Developer for the Project is $14,760 ($500 x 29.52 affected acres). Payment
shall be made prior to the release of subdivision assurances for any portion of the Property.
3.6. Compliance with state and federal laws and regulations. No approval, permit or
authorization of the Town authorizes the Developer to violate any applicable federal or state laws
or regulations, or relieves the Developer from the responsibility to ensure compliance with all
applicable federal and state laws and regulations, including but not limited to the Endangered
Species Act and Clean Water Act.
Article 4. Infrastructure Financing
4.1. Responsibility for financing infrastructure improvements. Upon request of the
Developer, the Town staff shall process any request for a community facilities district ("CFD")
pursuant to A.R.S. S 48-701, et seq. and the Town's Guidelines for Establishment of Community
Facilities Districts, and the Town Council shall reasonably consider such request for a CFD.
Article 5. Development Impact Fees and Credits
5.1. General provisions applicable to the determination of all development impact fees and
credi ts.
5.1.1. Total lots. The total number of residential lots anticipated to be constructed in
connection with the development of the Project is 114.
5.1.2. Recalculation of credits based on revised lot total. The development impact fee
credits calculated in this Article 5 shall be recalculated based on the actual number of lots
shown on final subdivision plat for the Project.
5.1.3. Actual construction and dedication as condition of credit. The credit against
development impact fees calculated in accordance with this Article 5 shall apply only to the
extent the Developer's construction and dedication or transfer of rights to the Town as
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anticipated in the calculation of the credit has been completed or is in progress to the
reasonable satisfaction of the Town.
5.1.4. Future fee revisions. If the Town amends its development impact fees applicable to
the Project, the fee per lot shall be the then-applicable fee minus the credit per lot calculated
for that particular fee in this Article 5.
5.1.5. Future impact fees. If the Town adopts an impact fee not addressed in this Article 5
for the same infrastructure for which Developer has contributed land or made improvements
or paid a voluntary fee pursuant to this Agreement, Developer shall be entitled to a credit for
such contributions as set forth in A.R.S. S 9-463.05, and the credit shall be calculated in a
manner consistent with the development impact fee credits set forth in this Article 5.
5.2. Arterial roadway development impact fees and credits.
5.2.1. Total value. The total value of arterial roads provided by the Developer to the
Town in connection with the development of the Project is $63,000.00, which is the
estimated fair market value of the approximately 2.1 acres of Moore Road right-of-way to be
dedicated by the Developer as part of the Project.
5.2.2. Credit per lot. The credit against the Town's arterial roadway development impact
fees is $553.00 per lot.
5.2.3. Current fee. As of the date of this Agreement, the Town's arterial roadway
development impact fee that would apply to the Project before the credit is $5,941.00.
Subtracting the $553.00 credit, the current arterial roadway development impact fee for the
Project is $5,388.00 per lot. of dedication.
5.3. Regional park development impact fees.
5.3.1. Current fee. As of the date of this Agreement, the Town's regional park
development impact fee applicable to the Project is $2,884.00. The Developer is not
providing any lands or improvements toward the Town's regional parks, and is not entitled to
any credits against the Town's regional park development impact fees.
5.4. Gravity storage and renewable resource development impact fees.
5.4.1. Current fee. As of the date of this Agreement, the Town does not have a gravity
storage and renewable resource development impact fee. However, the Town is currently in
the process of considering the adoption of a gravity storage and renewable resource
development impact fee. The Developer is not providing any lands or improvements toward
the Town's gravity water storage system or renewable water resources, and will not be
entitled to any credits against a Town gravity storage and renewable resource development
impact fee, if it is adopted.
5.5. Water system infrastructure development impact fees.
5.5.1. Total value. Developer is not providing any lands or improvements toward the
Town's water system capacity infrastructure. However, the lump-sum connection fee
payment of $98,496.00 provided in paragraph 2.7.4 above is intended to fund water system
capacity infrastructure.
5.5.2. Credit per lot. The credit against the Town's water system infrastructure
development impact fee is $864.00 per lot.
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5.5.3. Current fee. As of the date of this Agreement, the Town does not have a water
system infrastructure development impact fee. However, the Town is currently in the process
of considering the adoption of a water system infrastructure development impact fee. If a
Town water system infrastructure development impact fee is adopted in the future, the
Project will be entitled to a credit of $864.00 per lot against the adopted Town water system
infrastructure development impact fee.
Article 6. Cooperation and Alternative Dispute Resolution.
6.1. Appointment of representatives. To further the commitment of the Parties to cooperate
in the progress of the 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 (the "Town Representative") shall be the
Development Services Administrator, and the initial representative for the Developer shall be
Doug Noll or a replacement to be selected by the Developer. The representatives shall be
available at all reasonable times to discuss and review the performance of the Parties to this
Agreement and the development of the Property.
6.2. Timing. The Town acknowledges the necessity for prompt review by the Town of all
plans and other materials (the "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.
6.3. Default; remedies. If either Party defaults (the "Defaulting Party") with respect to any of
that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party") shall
be entitled to give written notice in the manner prescribed in Article 8 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 days from the date of the notice
within which to correct the default if it can reasonably be corrected by the payment of money, or
(ii) thirty days from the date of the notice to cure the default if action other than the payment of
money is reasonably required, or if the non-monetary default cannot reasonably be cured within
sixty days, then such longer period as may be reasonably required, provided and so long as the
cure is promptly commenced within sixty days and thereafter diligently prosecuted to
completion. If any default is not cured within the applicable time period set forth in this
paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration
proceedings set forth in paragraphs 6.4 and 6.5 below. The Parties 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 its condition 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 paragraph shall not limit any other rights, remedies, or causes of action
that either party may have at law or in equity.
6.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve
between themselves, the Parties agree that there shall be a forty-five day moratorium on
arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding
mediation before commencement of arbitration. The mediation shall be held under the
commercial mediation rules of the American Arbitration Association. The matter in dispute shall
be submitted to a mediator mutually selected by Developer and the Town. If the Parties cannot
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agree upon the selection of a mediator within seven days, then within three days thereafter the
Town and the Developer shall request the presiding judge of the Superior Court in and for the
County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected
shall have at least five years' experience in mediating or arbitrating disputes relating to real
estate development. The cost of any such mediation shall be divided equally between the Town
and the Developer. The results of the mediation shall be nonbinding on the Parties, and any Party
shall be free to initiate arbitration after the moratorium.
6.5. Arbitration. After mediation (paragraph 6.4 above) 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. S 12-501 et seq., and
judgment upon the award rendered by the arbitrator(s) may be entered in a court having
jurisdiction.
Article 7. Protected Development Rights
To ensure reasonable certainty, stability and fairness to the Developer and the Town for a
reasonable period of time, the Developer and the Town agree that the zoning designations, uses,
and densities that now apply to the Property, as amended by this Agreement, shall remain in
effect and shall not be changed for a period of five years after the execution of this Agreement
without the agreement of the Developer.
Article 8. Notices and Filings.
All notices, filings, consents, approvals and other communications provided for in or given in
connection with this Agreement 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 any Party may from time to time designate in writing
and deliver in a like manner):
To the Town:
TOWN OF MARANA
T own Manager
13251 N. Lon Adams Road
Marana, Arizona 85653
To the Developer:
THE FIANCHETTO PARTNERS, LLC
Patrick K O'Hagin, Manager
2225 E. Fort Lowell Road
Tucson, Arizona 85719
Article 9. General Terms and Conditions.
9.1. Term. This Agreement shall become effective upon its execution by all the Parties and
the effective date of the resolution or action of the Town Council approving this Agreement (the
"Effective Date"). The term of this Agreement shall begin on 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 on the twentieth anniversary of the Effective Date. If the
Parties determine that a longer period is necessary for any reason, the term of this Agreement
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may be extended by written agreement of the Parties. The Developer shall be entitled to
terminate this Agreement if the Town materially impairs the development entitlements on the
Property granted by this Agreement.
9.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that
right or remedy, 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.
9.3. Attorney's fees. If any Party brings a lawsuit against any other Party to enforce any of
the terms, covenants or conditions of this Agreement, or by reason of any breach or default of
this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys'
fees by the other Party, in an amount determined by the court and not by the jury.
9.4. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The signature pages from one or more counterparts may be removed from such
counterparts and such signature pages all attached to a single instrument so that the signatures of
all Parties may be physically attached to a single document.
9.5. Headings. The descriptive headings of this Agreement are intended to be used to assist
in interpreting the meaning and construction of the provisions of this Agreement.
9.6. Recitals. The Recitals set forth at the beginning of this Agreement are hereby
acknowledged and confirmed to be accurate.
9.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been
incorporated in this Agreement by reference with the same force and effect as if fully set forth in
the body of this Agreement.
9.8. Further acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter 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.
9.9. Future effect.
9.9.1. Time essence and successors. Time is of the essence of this Agreement. All of the
provisions of this Agreement shall inure to the benefit of and be binding upon the successors,
assigns and legal representative of the Parties, except as provided in paragraph 9.9.2 below.
Notwithstanding the foregoing, to the extent permitted by law, the Developer's rights under
this Agreement may only be assigned by a written instrument, agreed to by all of the Parties
and recorded in the Official Records of Pima County, Arizona, expressly assigning such
rights, and no obligation of the Developer under this Agreement shall be binding upon
anyone owning any right, title or interest in the Property unless such obligation has been
specifically assumed in writing or unless 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 for purposes of carrying out the development of the Property as
contemplated in this Agreement, and the Town's consent to the Developer's assignment of its
rights under this Agreement to such entities or subsidiaries shall not be withheld. In the
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event of a complete assignment by Developer of all rights and obligations of Developer
under this Agreement, Developer's liability under this Agreement shall terminate effective
upon the assumption of those liabilities by Developer's assignee, provided that the Town has
approved the assignment to such assignee, which approval shall not unreasonably be
withheld.
9.9.2. Termination upon sale to end purchaser or user. This Agreement shall terminate
without the execution or recordation of any further document or instrument as to any lot
which has been finally subdivided and individually (and not in "bulk") leased (for a period of
longer than one year) or sold to the end purchaser or user and thereupon such lot shall be
released from and no longer be subject to or burdened by the provisions of this Agreement.
9.10. No partnership and third parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between the Developer 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 to this
Agreement, and no such other person, firm, organization or corporation shall have any right or
cause of action under this Agreement.
9.11. Other instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all further instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
9.12. Imposition of duty by law. This Agreement does not relieve any Party of any
obligation or responsibility imposed upon it by law.
9.13. Entire agreement. This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements,
representation and understanding of the Parties, oral or written, are hereby superseded and
merged in this Agreement.
9.14. Amendments to agreement. No change or addition shall be made to this Agreement
except by a written amendment executed by the Parties. The Parties agree to cooperate and in
good faith pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Final Plat and Specific Plan as amended by this
Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the
office of the Pima County Recorder by and at the expense of the Party requesting the
amendment.
9.15. Names and plans. The Developer shall be the sole owner of all names, titles, plans,
drawings, specifications, ideas, programs, ideas, 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, however, that in connection with any conveyance of
portions of the infrastructure as provided in this Agreement such rights pertaining to the portions
of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to
the appropriate governmental authority.
9.16. 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 with authority to enter into this Agreement under applicable state laws.
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Each Party represents and warrants that the individual executing this Agreement on its behalf is
authorized and empowered to bind the Party on whose behalf each such individual is signing.
9.17. Severability. If any provision of this Agreement is declared void or unenforceable, it
shall be severed from the remainder of this Agreement, which shall otherwise remain in full
force and effect. If a law or court order prohibits or excuses the Town from undertaking any
contractual commitment to perform any act under this Agreement, this Agreement shall remain
in full force and effect, but the provision requiring the act shall be deemed to permit the Town to
act at its discretion, and if the Town fails to act, the Developer shall be entitled to terminate this
Agreement.
9.18. Governing law. 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. Nothing in the use of the word "litigation" in the preceding
sentence shall constitute a waiver of paragraph 6.5, requiring disputes to be resolved by binding
arbitration.
9.19. Interpretation. This Agreement has been negotiated by 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.
9.20. Recordation. The Town shall record this Agreement in its entirety in the office of the
Pima County Recorder no later than ten days after it has been executed by the Town and the
Developer.
9.21. No developer representations. Except as specifically set forth in this Agreement,
nothing contained in this Agreement shall be deemed to obligate the Town or the Developer to
complete any part or all of the development of the Property.
9.22. Approval. If any Party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or permission shall not be unreasonably
withheld or delayed.
9.23. Force maieure. If any Party shall be unable to observe or perform any covenant or
condition of this Agreement by reason of "force majeure," then the failure to observe or perform
such covenant or condition shall not constitute a default under this Agreement 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 in this paragraph, 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 kind of government of the United States or any state thereof or any of their departments,
agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots;
epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts;
floods; arrests, restraints of government and of people; explosions; and partial or entire failure of
utilities. Failure 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 judgment of and unfavorable
to a Party shall not constitute failure to use its best efforts to remedy such a condition.
9.24. Conflict of interest. This Agreement is subject to A.R.S. S 38-511, which provides for
cancellation of contracts in certain instances involving conflicts of interest.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
TOWN: DEVELOPER:
THE TOWN OF MARANA, an Arizona THE FIANCHETTO PARTNERS, an Arizona
municipal corporation limited liability company
By: By:
Ed Honea, Mayor Patrick K O'Hagin, Manager
Date: Date:
ATTEST: FIDELITY NATIONAL TITLE as Trustee under
Trust No. 60,208
Jocelyn C. Bronson, Clerk By:
ApPROVED AS TO FORM: Martha L. Hill, Trust Officer
Date:
Frank Cassidy, Town Attorney
STATE OF ARIZONA )
ss
County of Pima )
The foregoing instrument was acknowledged before me on , 2005 by
Patrick K O'Hagin, Manager of THE FIANCHETTO PARTNERS, an Arizona limited liability
company, on behalf of the LLC.
My commission expires:
Notary Public
STATE OF ARIZONA )
ss
County of Pima )
The foregoing instrument was acknowledged before me on , 2005 by
Martha L. Hill, Trust Officer of FIDELITY NATIONAL TITLE as Trustee under Trust No. 60,208.
My commission expires:
Notary Public
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