HomeMy WebLinkAboutResolution 99-054 la mirage development agreementMARANA RESOLUTION NO. 99-54
A RF.qOLUTION OF THE TOWN COUNCIL OF THE TOWN OF MARANA,
ARIZONA APPROVING AND AU'I~ORIZING T}~ TOWN TO ENTER INTO
A DEVELOPMENT AGREEi~ BY AND BETWEEN THE TOWN OF
MARANA AND DOERKEN PROPERTIES, INC., A CORPORATION
AUTHORIZED TO DO BUSINF__~ IN ARIZONA.
WHEREAS, the Town of Marana staff and the developer have negotiated
to adequately address the issues of concern to the Town of Marana regarding a
Development Agreement; and
WHEREAS, a specific plan for the area known as Rancho Marana was
previously adopted by the Town of Marana; ar~.d
WHEREAS, the Town of Marana approved the preliminary plat for
Doerken Properties, Inc. on February 17,1998 by Resolution No. 98-04; and
WHEREAS, it is in the best interests of the Town and the developer to
enter into this development agreement;
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the
Town of Marana that the Development Agreement bet~veen the Town of Marana
and Doerken Properties, Inc., for property known as La Mirage, and attached
hereto, be approved.
No. 9~-~4 Page I of 2
PASSED AND ADOPTED by the Mayor and Council of the Town of
Marana, Arizona, this 18th day of May, 1999.
Mayor ORA MAE ~ARN /
ATTEST:
APPROVED AS TO FORM:
Town Attorney and not personally
Marana Arizona Resolution No. 99-54 Page 2 of 2
F. ANN RODRIGUEZ, ~ORDER
RECORDED BY: JEC
DEPUTY RECORDER
1952 ROOF
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
La Mirage
Development Agreement
DOCKE~ 11076
PAGE: 854
NO. OF~AGES: 45
SEQUENCE: 19991220316
06/25/1999
AG 14:32
MAIL
AMOUNT PAID
$
28.00
T own of Marana, Arizona
Doerken Properties, Inc.
Marana/La Mirage Development Agreement
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TABLE OF CONTENTS
Page
1 Development Plans........................................................................................ 2
1.1 Development in Accordance with the MDC and Zoning .................. 2
1.2 Zoning & Plat Conditions .................................................................. 2
1.3 Amendments to Plans and Agreement............................................... 2
1.4 Archeological Preservation.. ............................... ............................... 3
1.5 Review of Building Permits.................................................. ............. 3
2 On-Site Infrastructure.................................................................................... 3
2.1 Water Utilities.................................................................................... 3
2.2 Wastewater Treatment Facility................... ...................... ....... .......... 3
2.3 Recreation Facilities.......................................................................... 4
2.3.1 Golf Course.................................... ........................ ................ 4
2.3.2 Recreational Facilities............................................................ 4
2.4 Fire Protection.................................................................................... 5
3 Tangerine Road Connection .......................................................................... 5
3.1 Purpose........ ....................................................................................... 5
3.2 Preparation of Design Concept Plan.................................................. 5
3.3 Private Improvement Project Option ................................................. 6
3.4 Public Improvement District Option.................................................. 6
3.4.1 Grier Road Improvements............ .............. ..... ......................... 6
3.4.2 Inclusion of the Property..... ......... ........ .......... ....... .................... 6
3.5 Completion of Tangerine Road Connection ...................................... 7
4 Patton Railroad Crossing Improvements ....................................................... 7
4.1 Application For Crossing..................... .................... ....... ................... 7
4.2 Construction Of Roadway......................... ............ ....... ....... ......... ..... 7
5 Construction Traffic....................................................................................... 8
6
Cooperation and Alternative Dispute Resolution .......................................... 8
6.1 Appointment of Representatives......................................... ............... 8
6.2 Timing................................................................................................ 8
6.3 Outside Consultants........................................................................... 8
6.4 Default; Remedies.............................................................................. 9
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Protected Development Rights...................................................................... 9
7.1 Purpose............................................................................................... 9
7.2 Protected Development Rights.......................................................... 9
Notices and Filings........................................................................................ 10
8.1 Manner of Serving..................................... ............ ....... ...... ............... 10
9 General Terms & Conditions.......................... ...................................... ......... 10
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MaranalLa Mirage Development Agreement
9.1 Term................................................................................................... 10
9 .2 Waiver................................................................................................ 11
9.3 Attorneys' Fees................................................................................... 11
9.4 Counterparts....................................................................................... 11
9.5 Headings and Recitals...... ........................... .............. .......... ............... 11
9.6 Exhibits.............................................................................................. 11
9.7 Further Acts ............................. ...... .................................................... 11
9.8 Future Effect...................................................................................... 12
9.9 No Partnership and Third Parties............................ ............ ............... 12
9.10 Other Instruments .............................................................................. 13
9.11 Imposition of Duty By Law........... .............................. ...................... 13
9.12 Entire Agreement............................................................................... 13
9.13 Amendment........................................................................................ 13
9 .14 Names and Plans................................................................................ 13
9.15 Good Standing; Authority.............................. ....... ............ ....... .......... 13
9.16 Severability........................................................................................ 13
9.17 Governing Law! Arbitration................................................... ............ 14
9.18 Recordation........................................................................................ 14
9.19 No Developer Representations .......................................................... 14
9.20 Approval............................................................................................ 14
9 .21 Force Majeure.................................................................................... 14
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MaranalLa Mirage Development Agreement
EXHIBIT LIST:
Exhibit # Description of Exhibit Prepared By
A. Map of the property Developer
B. Legal description of the property Developer
C. Resolution No. 98-04 approving preliminary plat Town
D. Water Service Agreement Developer
E. Tangerine Road Connection conceptual plan Developer
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MaranalLa Mirage Development Agreement
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT [hereinafter "Agreement"] is made
by and between the TOWN OF MARANA, an Arizona municipal corporation
[hereinafter "Town"] and DOERKEN PROPERTIES, INC., a California corporation
[hereinafter "Developer"].
RECITALS
A. The Developer is the owner of approximately 242.45 acres of real property
within the corporate limits of the Town, as depicted on the map attached
hereto as Exhibit "A" and legally described on Exhibit "B" [hereinafter
collectively referred to as the "Property"].
B. The Developer intends to construct on approximately 138 acres of the
Property 508 single-family dwelling units, a golf course and related common
facilities, identified as the La Mirage subdivision ["La Mirage"]. The
Developer has submitted a preliminary plat for La Mirage, and on February
17, 1998, the Town adopted Resolution No. 98-04 [the "Plat Resolution"]
approving the preliminary plat, a copy of which is attached as Exhibit "C".
The Developer plans development on the balance of the Property in
conformance with the Rancho Marana Specific Plan as adopted by the Town
by Ordinance No. 90.04 and amended from time to time [hereinafter the
"Specific Plan"], and the Marana Development Code (including the written
rules, regulations, procedures and other policies relating to development of
land, whether adopted by the Mayor and Councilor by Town staff)
[hereinafter the "MDC"].
C. The future development of the Property shall be subject to (i) the MDC, (ii)
conditions of the Developer's Preliminary Plat as detailed in Marana
Resolution No. 98-04 passed and adopted February 17, 1998, (iii) the Specific
Plan, and (iv) the final plat for La Mirage, as hereafter approved by the Town
[the "Final Plat"], collectively establishing, among other things, the type of
land uses, location, density and intensity of such land uses, and community
character of the Property, and providing for, among other things, the
development of a variety of housing and recreation/open space opportunities.
D.
The Developer and the Town desire that the Property shall be developed in
accordance with the MDC, the Plat Resolution, the Specific Plan, and the
Final Plat, as amplified and supplemented by this Agreement. The parties
acknowledge that this Agreement is intended to be consistent with the
foregoing, and operates to the benefit of the Town, the Developer, and the
public.
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E.
The parties understand and acknowledge that this Agreement is a
"Development Agreement" within the meaning of, and entered into pursuant
to the terms of, A.R.S. S 9-500.05, in order to facilitate the development of the
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MaranalLa Mirage Development Agreement
Property by providing for, among other things, conditions, terms, restrictions
and requirements for the construction and installation of public infrastructure
as more particularly described herein, the phasing over time of construction or
development on the Property, and other matters related to the development of
the Property.
F. The Town and the Developer acknowledge that the development of the
Property pursuant to this Agreement will result in planning and economic
benefits to the Town and its residents by, among other things, requiring
development of the Property consistent with the MDC, Plat Resolution, the
Final Plat, and the Specific Plan.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises and agreements set forth herein, the parties hereto state, confirm and
agree as follows:
AGREEMENT
1 Development Plans.
1.1 Development in Accordance with the MDC and Zoning. Prior to the
approval and execution of this Agreement, the Town has approved the
Specific Plan, the Plat Resolution, and the Final Plat. The Property shall
be developed in accordance with these documents, which, in conjunction
with the MDC, set forth the basic land uses, densities and intensities of
such land uses as presently authorized for the Property and development
regulations related thereto. Upon compliance by the Developer with the
applicable development review and approval procedures as set forth in
the MDC and other Town ordinances, rules, regulations and state laws,
the Town agrees to approve or issue such permits, plans, specifications,
and/or plats of or for the Property as may be requested by the Developer
and which are consistent with the Specific Plan, Plat Resolution, the
Final Plat, and the MDC.
1.2 Zoning & Plat Conditions. The Developer agrees to fulfill all conditions
outlined in the Specific Plan, Plat Resolution, and Final Plat for the
Property.
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1.3 Amendments to Plans and Agreement. The Town and the Developer
agree to cooperate and in good faith pursue any amendments to this
Agreement that are reasonably necessary to accomplish the goals
expressed in the MDC, Specific Plan and plats, and to facilitate the
development of the Property in light of any changes in development
requirements, including an extension of the term of this Agreement as
provided in Section 9.1. The Town believes that an amendment of the
Specific Plan is desirable to accurately reflect the infrastructure planning
previously submitted by the Developer in connection with the review
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MaranalLa Mirage Development Agreement
and approval of its preliminary plat, and the final layout of streets shown
on the preliminary plat. The Developer agrees to prepare and submit to
the Town a proposed Amended Specific Plan. The Town will cooperate
with the Developer in the preparation of such Amended Specific Plan,
and upon submittal of a complete application by the Developer, will
transmit the amendment in a timely manner to the Planning and Zoning
Commission and Town Council for hearing and action. If the Developer
determines that it would be beneficial to amend this Agreement to
include adjacent lands owned by the Developer, the Town agrees to
consider in good faith such amendment. All amendments to this
Agreement shall be in writing and, if approved, must be signed by all
appropriate parties. Any amendment to this Agreement shall be
approved and recorded pursuant to Section 8.13 hereof.
1.4 Archeological Preservation. The Developer shall take suitable measures
to recover significant archeological materials pursuant to the
recommendation of a state-certified archeologist, and the developer shall
consult with such persons and the State Historic Preservation
Office/Arizona State Museum before any ground disturbances are made.
The Developer shall work with the Arizona State Museum to implement
an acceptable recovery program pursuant to state law in the event that
any burial remains are discovered during the project development.
1.5 Review of Building Permits. All dwelling units shall be site built, unless
otherwise approved by the Town Council. Notwithstanding section 9.8.1
and 9.8.2 and other provisions hereof, this subsection shall apply to all
land within the Property, whether sold in bulk or individually, whether
subdivided or not, and shall apply to each and every lot and shall run
with the land.
2 On-Site Infrastructure.
2.1 Water Utilities. The parties have pursued a Water Service Agreement
which sets forth the various agreements of the parties relating to, among
other things, the development, construction, dedication, ownership, and
design of the water system which shall serve the Property. A copy of the
Water Service Agreement executed by the Developer is attached to this
Agreement as Exhibit "D". This Water Service Agreement shall be
entered into prior to the approval of the Final Plat for the Property. The
Town will act on the Water Service Agreement not less than 30 days
after the Effective Date.
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2.2 Wastewater Treatment Facility. Pima County has agreed that
wastewater generated by development of the Property may be treated by
an on-site wastewater treatment facility constructed, owned and operated
by the Developer. Construction and operation of this facility will require
an amendment to the current Pima Association of Governments
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Marana/La Mirage Development Agreement
[hereinafter "P AG"] 208 Plan Amendment for the Property, as well as
approvals by state agencies. The Town will support the Developer's
P AG 208 Plan amendment, including placement of the amendment on
the P AG Council agenda, and necessary state approvals. The Developer
will submit both conceptual designs and construction plans for the
wastewater treatment facility to the Town and all other agencies required
by applicable law or regulation to review such plans for review and
approval. The wastewater treatment facility shall be completed and
operational prior to the issuance of any occupancy permits for any
dwelling unit.
2.3 Recreation Facilities. It is the Developer's intention, which the Town
acknowledges and relies upon, to market La Mirage to senior citizens.
With that objective in mind, the Developer shall, prior to the issuance of
a certificate of occupancy for any dwelling unit in La Mirage, impose
upon the La Mirage subdivision, covenants requiring at least one person
occupying a dwelling unit to be fifty (50) years of age or older.
2.3.1 Golf Course. In keeping with the intention to restrict La Mirage to
senior citizens, the Developer shall cause to be constructed a 9
hole "executive" type golf course, tennis courts, a swimming pool
and a clubhouse with services appropriate to a golf course, meeting
rooms for the use of subdivision residents, and appropriate parking
facilities. The construction of the golf course and those clubhouse
facilities necessary to support golf play shall be completed before
the release of assurances or issuance of occupancy permits for
Phase I of La Mirage. All other golf course, clubhouse, and
related recreational improvements shall be completed prior to the
issuance of a certificate of occupancy for any dwelling unit in
Phase III of La Mirage.
2.3.2 Additional Recreational Facilities. In the event that, after using its
reasonable best efforts, the Developer is unable (for legal reasons)
to qualify La Mirage under the retirement community exceptions
of the federal Fair Housing Act and other similar state and federal
regulations which would permit the imposition of covenants
containing age restrictions, the Developer shall set aside and
identify on the Final Plat, at least one acre in the vicinity of the
proposed clubhouse for additional, non-golf recreational facilities
for the use of families. These recreational facilities shall include a
par course/jogging path with connections to any off-site trail
systems; and a picnic area including tables, drinking fountain(s),
shade trees, and other appropriate landscaping. These
improvements shall be completed prior to the issuance of a
certificate of occupancy for any dwelling unit in Phase III of La
Mirage.
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Marana/La Mirage Development Agreement
2.4 Fire Protection. Prior to the issuance of the certificate of occupancy for
any dwelling unit, the Developer shall have completed the process of
having the Property annexed into a fire district. The fire district must be
capable of providing fire prevention, fire suppression and other
emergency services, and must be approved by the Town, such approval
not to be unreasonably withheld.
3 Tangerine Road Connection.
3.1 Pm:pose. Under the Town's General Plan, Transportation Plan, and the
Specific Plan, vehicular circulation is to be provided from the existing
terminus of Grier Road to Tangerine Road by an extension from Grier
Road and/or Moore Road [hereinafter the "Tangerine Road
Connection"]. The parties agree that the Tangerine Road Connection
offers the most desirable solution for appropriate access to the Property,
but recognize that the construction of the Tangerine Road Connection
requires the involvement and/or cooperation of several intervening
property owners. In order to implement the Tangerine Road Connection,
the Town and Developer agree to the actions set forth hereafter.
3.2 Preparation of Design Concept Plan. The Developer has prepared and
submitted to the Town a conceptual plan for the Tangerine Road
Connection, including a proposed alignment, proposed design cross-
section and construction specifications, and a preliminary cost estimate,
a copy of which is attached hereto as Exhibit "E" [hereinafter the
"Conceptual Plan"]. The Developer and the Town shall both work in
good faith to review and revise the Conceptual Plan as circumstances
dictate, until a final Conceptual Plan for the Tangerine Road Connection
has been completed. The documents discussed in this section shall be
prepared at the sole cost of the Developer.
3.3 Private Improvement Proiect Option. Upon completion of the
Conceptual Plan set forth above, the Town and the Developer shall invite
the intervening property owners to participate in a private improvement
project for the Tangerine Road Connection, to be carried out by the
Developer. As an inducement to the other property owners to participate
in this private improvement project, the Town shall contribute ten
percent (10%) of the project design and construction costs, which
represents the community-wide benefit to the Town from the Tangerine
Road Connection, as measured by the number of vehicular trips from
origins other than the participating properties, the enhancement of
emergency vehicle access, the relief of traffic congestion, and the
completion of transportation elements identified in the Town's General
Plan. The Town agrees that, upon completion of the Tangerine Road
Connection, it shall accept the dedication of the right-of-way, and shall
thereafter maintain the roadway.
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Marana/La Mirage Development Agreement
3.4 Public Improvement District Option. In the event the Town and the
Developer are unable to obtain the cooperation of the intervening
property owners in a private improvement project within six (6) months
of the completion of the Concept Plan, the Town shall initiate a
municipal improvement district for the construction of the Tangerine
Road Connection [hereinafter the "Improvement District"]. In such an
event, the Developer shall agree to the Improvement District, and shall
cooperate with the Town in the planning and implementation of the
Improvement District. The Developer shall, upon demand by the Town,
advance the cost of the conceptual design, cost estimates, benefit
assessment, proposal to form, and all other costs of preparing for and
completing the Improvement District formation, and the Improvement
District shall reimburse the Developer these funds (without interest)
upon formation and funding of the Improvement District. If necessary,
the Town shall, to the extent provided by law, exercise its power of
eminent domain to acquire any right-of-way necessary for the
construction of the Tangerine Road Connection by the Improvement
District, and all associated costs will be paid by the Improvement
District. The Town shall proceed with the formation of the Improvement
District and condemnation of any necessary rights-of-way in a timely
manner consistent with applicable statutory provisions.
3.4.1 Grier Road Improvements. In the event the Tangerine Road
Connection is funded through an Improvement District, the
District shall include improvements to Grier Road as set forth
herein and as approved by the Town. This improvement shall
consist of a realignment of Grier Road to the north over
intervening private and state land to eliminate existing 90-degree
turns between the Development and the terminus at theTrico-
Marana/1-10interchange, [hereinafter the "Grier Road
Realignment"], a conceptual design for which is included with
Exhibit "E". In order to accomplish the Grier Road Realignment,
the Developer shall prepare, at its own expense, a preliminary
concept plan, cost estimates, and other necessary documentation,
and the Improvement District shall reimburse the Developer these
funds (without interest) upon formation and funding of the
Improvement District. If necessary, the Town shall, to the extent
provided by law, exercise its power of eminent domain to acquire
any right-of-way necessary for the construction of the Grier Road
Realignment by the Improvement District, and all associated costs
will be paid by the Improvement District.
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3.4.2 Inclusion of the Property. If the Tangerine Road Connection is
funded through an Improvement District, the Property may be
included in the District, but the Developer shall receive a credit
against its Improvement District assessment for the design and
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Marana/La Mirage Development Agreement
construction costs incurred by the Developer for the Grier Road
segment located within La Mirage.
3.5 Completion of Tangerine Road Connection. The Tangerine Road
Connection shall be completed before issuance of any occupancy
permits on the Property, except that if the Developer elects to construct
the alternative access as provided in Section 4, the Developer may obtain
occupancy permits for Phase I and II of La Mirage. There shall be no
approval of any plat for any portion of the Property other than La Mirage
until the Tangerine Road Connection is completed.
4 Patton Railroad Crossing Improvements. Should Developer desire certificates
of occupancy prior to the completion of the Tangerine Road Connection,
Developer may chose to construct an alternate access as set forth in this
Section, which will allow occupancy certificates to be issued for Phases I
and II of La Mirage. The alternate access shall be via the frontage road on the
east side of Interstate 10, using the existing Patton Crossing across the
railroad tracks [hereinafter the "Patton Crossing"]. Toward this end, the
parties shall proceed as hereinafter set forth.
4.1 Application For Crossing. Within one (1) month following the approval
of the Final Plat, the Developer will prepare the necessary
documentation to initiate the process with the Arizona Corporation
Commission and the Union Pacific Railroad to reclassify the Patton
Crossing as a public crossing with appropriate gates and warning
devices. Although the Town must act as the sponsor for this request and
will cooperate with the Developer in a timely manner to initiate the
request, the Developer will prepare the necessary documentation and
shall pay the costs in relation thereto. In the interim, the Patton Crossing
may be used by the Developer as a private crossing.
4.2 Construction Of Roadway. The Developer shall construct, to Town
specifications, a two-lane paved roadway from La Mirage to the Patton
Crossing. This roadway will be built at the sole cost of the Developer.
Any right-of-way required for this roadway which is owned, directly or
indirectly by the Developer, whether part of the Property or not, shall be
dedicated to the Town for roadway purpose. If any segment of this
roadway is subsequently realigned, the right-of-way dedicated to the
Town pursuant to this section shall be exchanged with the Developer for
alternative right-of-way improved at the sole cost of the Developer, or if
the roadway is abandoned, the right-of-way shall be reconveyed to the
Developer for nominal consideration pursuant to A.R.S. 99 28-7205, 28-
7208. Any other necessary right-of-way owned by other private
property owners, which the Developer is unable to acquire for its
reasonable, fair market value, shall be acquired in a timely manner by
the Town through its use of eminent domain, when permitted by law.
Developer shall reimburse the Town all reasonable costs associated with
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the condemnation process, including but not limited to appraisal costs,
legal fees, property costs, and judgments. Upon completion of the
roadway, Developer shall dedicate the entire right-of-way to the Town
which agrees to accept the right-of-way and provide maintenance
thereafter.
5 Construction Traffic. Construction traffic for this project shall not utilize
Grier Road adjacent to the Adonis Mobile Home Park.
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 [hereinafter "Town
Representative"] shall be the Planning Director, and the initial
representative for the Developer shall be Peter Doerken or a replacement
project manager to be selected by the Developer. The representatives
shall be available at all reasonable times to discuss and review the
performance of the parties to this Agreement and the development of the
Property.
6.2 Timing. The Town acknowledges the necessity for prompt review by
the Town of all plans and other materials ("Submitted Materials")
submitted by the Developer to the Town hereunder or pursuant to any
zoning procedure, permit procedure, or other governmental procedure
pertaining to the development of the Property and agrees to use its best
efforts to accomplish such prompt review of the Submitted Materials
whenever possible.
6.3 Outside Consultants. In the event the Town is unable to provide
sufficient personnel (either in-house staff or outside consultants to the
Town) to review the Submitted Materials within the time desired by the
Developer, the Developer may elect to pay the reasonable costs incurred
by the Town to retain such consultants or other experts as the Town may
reasonably deem necessary to review the Submitted Materials on behalf
of the Town. Because of the Developer's liability for the Consultant's
fees, any consultants under this paragraph shall be selected by the
agreement of both the Town and the Developer. The Town and the
Developer shall diligently select consultants following a request by the
Developer hereunder. The Developer acknowledges that the consultants'
recommendations will be subject to review and revision by the Town
Staff and that the Town shall not be bound by any of the consultants'
recommendations unless adopted by the Town Councilor other board or
person having final approval rights on each Submitted Material. The
Developer's liability for Consultant fees hereunder shall be unconditional
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Marana/La Mirage Development Agreement
and the Developer shall indemnify and hold the Town harmless from any
claims relating to such fees.
6.4 Default: Remedies. If either party hereto defaults (the "Defaulting
Party") with respect to any of such party's obligations hereunder, then
the other party hereto (the "Non-Defaulting Party") shall be entitled to
give written notice in the manner prescribed in Section 8.1 to the
Defaulting Party, which notice shall state the nature of the default
claimed and make demand that such default be corrected. The
Defaulting Party shall then have (i) twenty (20) days from the date of
such notice within which to correct such default if it can reasonably be
corrected by the payment of money, or (ii) sixty (60) days from the date
of such notice to cure such default if action other than the payment of
money is reasonably required, or if any such non-monetary default
cannot reasonably be cured within sixty (60) days, then such longer
period as may be reasonably required, provided and so long as such cure
is promptly commenced within such period and thereafter diligently
prosecuted to completion. If any such default is not cured within the
applicable time period(s) set forth above in this Section 6.4, then the
Non-Defaulting Party shall be entitled to commence an action at law or
in equity in the Pima County Superior Court. The parties hereto agree
that due to the size, nature and scope of the Development, and due to the
fact that it may not be practical or possible to restore the Property to the
condition which existed prior to Developer's development and
improvement work, once implementation of this Agreement has begun,
money damages and remedies at law will likely be inadequate and that
specific performance will likely be appropriate for the enforcement of
this Agreement. This Section 6.4 shall not limit any other rights,
remedies, or causes of action that either party may have at law or in
equity.
7 Protected Development Rights.
7.1 Purpose. One of the purposes of this Agreement is to establish legally
protected rights for the development of the Property in a manner which
is consistent with the Specific Plan, the Plat Resolution, the Final Plat
and this Agreement, in order to ensure reasonable certainty, stability and
fairness to the Developer over the term of this Agreement.
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7.2 Protected Development Rights. The Developer shall be entitled to
develop the Property during the term of this Agreement with the
permitted uses, density and intensity of uses, and maximum height and
size of buildings as permitted by the Specific Plan, the Plat Resolution,
the Final Plat, the Development Code, federal state and local laws, and
this Agreement (the "Protected Development Rights"). The Developer's
Protected Development Rights shall not be substantially impaired as a
result of the Town's adoption and enforcement of any amendment to the
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Specific Plan, or any other ordinance, rule, regulation, and/or official
policy of the Town adopted or approved after the Effective Date.
8 Notices and Filings.
8.1 Manner of Serving. All notices, filings, consents, approvals and other
communications provided for herein or given in connection herewith
shall be validly given, filed, made, transmitted or served if in writing and
delivered personally or sent by registered or certified United States mail,
postage prepaid, if to (or to such other addresses as either party hereto
may from time to time designate in writing and deliver in a like manner):
The Town:
Town of Maran a
Planning Director
13251 N. Lon Adams Road
Marana, Arizona 85653
With a copy to:
Daniel J. Hochuli, Esq.
Daniel J. Hochuli & Associates
220 East Wetmore Rd., Suite 110
Tucson, Arizona 85705
The Developer:
Peter W. Doerken
Doerken Properties, Inc.
Doerken Properties, Inc.
11835 Olympic Boulevard, Suite 975
West Los Angeles, California 90064
With a copy to:
Frank S. Bangs, Jr.
Lewis and Roca, LLP
One S. Church Ave., Suite 700
Tucson, AZ 85701-1620
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9 General Terms & Conditions.
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9.1 Term. This Agreement shall become effective upon its execution by all
the parties and the taking effect of a duly adopted resolution of the
Town's governing body approving the Agreement [the "Effective
Date"]. The term of the Agreement shall commence upon the Effective
Date and, unless sooner terminated by the mutual consent of the parties,
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shall automatically terminate and shall thereafter be void for all purposes
ten (10) years from the date of this Agreement. If the parties determine
that a longer period is necessary for any reason, the term of this
Agreement may be extended by written acknowledgment executed by
the parties.
9.2 Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver by the Town or the Developer of the
breach of any covenant of this Agreement shall be construed as a waiver
of any preceding or succeeding breach of the same or any other covenant
or condition of this Agreement.
9.3 Attorneys' Fees. In the event any party hereto finds it necessary to bring
an action at law or other proceeding against any other party to enforce
any of the terms, covenants or conditions hereof, or by reason of any
breach of default hereunder, the party prevailing in any such action or
other proceeding shall be paid all reasonable costs and reasonable
attorneys' fees by the other party, and in the event any judgment is
secured by said prevailing party, all such costs and attorneys' fees shall
be included therein, such fees to be set by the court and not by jury.
9.4 Counteq>arts. 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 and Recitals. The descriptive headings of the sections of this
Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof. The
Recitals set forth at the beginning of this Agreement are hereby
acknowledged and incorporated herein and the parties hereby confirm
the accuracy thereof.
9.6 Exhibits. Any exhibit attached hereto shall be deemed to have been
incorporated herein by this reference with the same force and effect as if
fully set forth in the body hereof.
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9.7 Further Acts. Each of the parties hereto shall execute and deliver all
such documents and perform all such acts as reasonably necessary, from
time to time, to carry out the matters contemplated by this Agreement.
Without limiting the generality of the foregoing, the Town shall
cooperate in good faith and process promptly any requests and
applications for plat or permit approvals or revisions, and other
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MaranalLa Mirage Development Agreement
necessary approvals relating to the development of the Property by the
Developer and its successors.
9.8 Future Effect.
9.8.1 Time Essence and Successors. Time is of the essence of this
Agreement. All of the provisions hereof shall inure to the benefit
of and be binding upon the successors, assigns and legal
representative of the parties hereto, except as provided in Section
9.8.2 below. Notwithstanding the foregoing, to the extent
permitted by law, the Developer's rights hereunder may only be
assigned by a written instrument, agreed to by all of the parties to
the Agreement hereto and recorded in the Official Records of Pima
County, Arizona, expressly assigning such rights, and no
obligation of the Developer hereunder 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 or Peter W. Doerken 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 hereunder to such entities or
subsidiaries shall not be withheld. In the event of a complete
assignment by Developer of all rights and obligations of Developer
hereunder, Developer's liability hereunder shall terminate effective
upon the assumption by Developer's assignee, provided that the
Town has approved the assignment to such assignee, which
approval shall not unreasonably be withheld.
9.8.2 Termination Upon Sale to Public. It is the intention of the parties
that although recorded, this Agreement shall not create conditions
or exceptions to title or covenants running with the land.
Nevertheless, in order to alleviate any concern as to the effect of
this Agreement on the status of title to any of the Property, this
Agreement shall terminate without the execution or recordation of
any further document or instrument as to any lot which has been
finally subdivided and individually (and not in "bulk") leased (for
a period of longer than one year) or sold to the end purchaser or
user thereof and thereupon such lot shall be released from and no
longer be subject to or burdened by the provisions of this
Agreement.
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9.9 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
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MaranalLa Mirage Development Agreement
benefit of any person, firm, organization or corporation not a party
hereto, and no such other person, firm, organization or corporation shall
have any right or cause of action hereunder.
9.10 Other Instruments. Each party hereto shall, promptly upon the request of
the other, have acknowledged and delivered to the other any and all
further instruments and assurances reasonably requested or appropriate
to evidence or give effect to the provisions of this Agreement.
9.11 Imposition of Duty By Law. This Agreement does not relieve any party
hereto of any obligation or responsibility imposed upon it by law.
9.12 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof. All
prior and contemporaneous agreements, representations and
understanding of the parties, oral or written, are hereby superseded and
merged herein.
9.13 Amendment. No change or addition is to be made to this Agreement
except by a written amendment executed by the parties. Within ten (10)
days after any amendment to this Agreement, such amendment shall be
recorded by, and at the expense of, the party requesting the amendment,
in the Official Records of Pima County, Arizona.
9.14 Names and Plans. The Developer shall be the sole owner of all names,
titles, plans, drawings, specifications, ideas, programs, designs and work
products of every nature at any time developed, formulated or prepared
by or at the instance of the Developer in connection with the Property or
any plans; provided, 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.
9.15 Good Standing: Authoritv. The Developer represents and warrants to
the Town that it is duly formed and validly existing under the laws of
California and is authorized to do business in the state of Arizona. The
Town represents and warrants to the Developer that it is an Arizona
municipal corporation duly qualified to do business in the State of
Arizona and is in good standing under applicable state laws. Each of the
parties hereto represents and warrants to the others that the individual(s)
executing this Agreement on behalf of the respective parties are
authorized and empowered to bind the party on whose behalf each such
individual is signing.
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9.16 Severability. If any provision of this Agreement is declared void or
unenforceable, such provision shall be severed from this Agreement,
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Marana/La Mirage Development Agreement
which shall otherwise remain in full force and effect. If any applicable
law or court of competent jurisdiction prohibits or excuses the Town
from undertaking any contractual commitment to perform any act
hereunder, this Agreement shall remain in full force and effect, but the
provision requiring such action shall be deemed to permit the Town to
take such action at its discretion. If, however, the Town fails to take the
action specified hereunder, the Developer shall be entitled to terminate
this Agreement.
9.17 Governing Law/Arbitration. This Agreement is entered into in Arizona
and shall be construed and interpreted under the laws of Arizona, and the
parties agree that any litigation or arbitration shall take place in Pima
County, Arizona. In particular, this Agreement is subject to the
provisions of A.R.S. S 38-511. This Agreement has been negotiated by
separate legal counsel for the Town and the Developer, and no party
shall be deemed to have drafted this Agreement for purposes of
construing any portion of this Agreement for or against any party. Any
dispute, controversy, claim or cause of action arising out of or relating to
this Agreement shall be settled by submission of the matter by both
parties to binding arbitration in accordance with the rules of the
American Arbitration Association and the Arizona Uniform Arbitration
Act, A.R.S. S 12-501 et seq., and judgment upon the award rendered by
the arbitrator(s) may be entered in a court having jurisdiction thereof.
9.18 Recordation. No later than ten (10) days after this Agreement has been
executed by the Town and the Developer, it shall be recorded in its
entirety, by, and at the expense of, the Developer, in the Official Records
of Pima County, Arizona.
9.19 No Developer Representations. Except as specifically set forth herein,
nothing contained herein shall be deemed to obligate the Town or the
Developer to complete any part or all of the development of the
Property .
9.20 Approval. If the 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.
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9.21 Force Mai eure. If any party hereto shall be unable to observe or perform
any covenant or condition herein by reason of "force majeure," then the
failure to observe or perform such covenant or condition shall not
constitute a default hereunder so long as such party shall use its best
effort to remedy with all reasonable dispatch the event or condition
causing such inability and such event or condition can be cured within a
reasonable amount of time. "Force majeure," as used here, means any
condition or event not reasonably within the control of such party,
including without limitation, "acts of God"; strikes, lock-outs, or other
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Marana/La Mirage Development Agreement
disturbances of employer/employee relations; acts of public enemies;
orders or restraints of any mind of the government of the United States
or any state thereof or any 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 judgement of the party hereto
unfavorable to such party, shall not constitute failure to use its best
efforts to remedy such a condition.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year written below.
Date: ~ I~ (CfC/9
TOWN OF MARANA
an Arizona municipal corporation
ATTEST:
By (J) ~~ YIf:: ~
Mayor Ora H
APPROVED AS T RM 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 0 ar a.
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Attorney for Town of Marana
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MaranalLa Mirage Development Agreement
Date:
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DOERKEN PROPERTIES
a California corporation
By
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County of Ii ~
.,tL.-The foregoing ocum t was sworn to and acknowledged before me the
'-6 t!I day of , 1999, by Peter W. Doerken, the President of
Doerken Properties, Inc., California corporation.
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Notary Public
My commission expires:
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MaranalLa Mirage Development Agreement
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EXHIBIT "B"
All that portion of Section 26, Township 11 South, Range 11 East,
Gila and Salt River Base and Meridian, Pima County, Arizona, lying
North and East of the Southern Pacific Railroad Right of way:
EXCEPT THE FOLLOWING DESCRIBED PARCELS:
PARCEL Az
All that portion of said Section 26 lying West of a line described
as follows:
commencing at the Northwest corner of said Section 26;
Thence South 89 degrees 11 minutes 57 seconds East, a distance of
2317.00 feet to the Northeast corner of ADONIS MOBILE HOME
SUBDIVISION as recorded in Book 24 of Maps and plats at Page 40,
and the point of beginning.
Thence along the East line of said subdivision, South 00 degrees 48
minutes 03 seconds West, a distance of 900.96 feet to a point of
curve;
Thence Southwesterly along the arc of a 1402.00 foot radius curve,
through a central angle of 40 degrees 31 minutes 00 seconds a
distance of 991.42 feet to a point;
Thence South 41 degrees 19 minutes 03 seconds West, a distance of
153.96 feet to a point;
Thence South 41 degrees 18 minutes 09 seconds West, a distance of
181.95 feet to a point of the Northeasterly line of the Southern
Pacific Railroad right-of-way and the point of terminus of this
line.
PARCJlL Bz
All that portion of said Section 26 described as follows:
Beginning at the Northeast corner of said Section 26;
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Thence Westerly along the North boundary of said Section 26, a
distance of 2437 feet;
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Thence southeasterly in a straight line to a point on the East
boundary of said Section 26, which point is 875 feet Southerly from
the Place of Beginning;
Thence Northerly along the East boundary of said Section 26, to the
place of beginning.
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Also, except from that part thereof lying within the East half of
said Section 26, all rights to any and all minerals, ores, and
metals of every kind and character, and all coal, asphaltum, oil,
gases, fertilizers, fossils and other like substances in or under
said land, as reserved in the Patent from the State of Arizona.
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MARANA RESOLUTION NO. 98-04
A RESOLUTION OF THEMA YORAND COUNCIL OF THE TOWN OF MARANA, ARIZONA,
APPROVlNG LA MIRAGE ESTATES PRELIMINARY PLAT SUBMITTED BY ICON
CONSULTANTS USA, lNC. ON BEHALF OF DOERKEN PROPERTIES FOR 508 SlNGLE
FAMILY DETACHED HOME LOTS ON 138.27 ACRES LOCATED WITHIN A PORTION OF
THE NORTH 1/2 OF SECTION 26, TOWNSHIP 11 SOUTH, RANGE 11 EAST.
WHEREAS, the Town of Marana has previously approved the specific plan for the area
known as the Rancho Marana, located within the corporate boundaries of the Town of Marana,
Arizona; and
WHEREAS, ICON Consultants USA, Inc., on behalf of the owner, Dorken Properties, has
applied to the Town of Maran a for approval of the La Mirage Estates preliminary plat for 508 single
family detached home lots on 138.27 acres of property located within a portion ofthe North 1/2 of
Section 26, Township 11 South, Range 11 East, and;
WHEREAS, the original preliminary plat which was conditionally approved by the Marana
Planning Commission on November 30,1994 and approved by Marana Town Council on January
3, 1995 has been significantly changed, requiring a resubmission of the preliminary plat for approval;
and
WHEREAS, the revised preliminary plat for La Mirage Estates was presented to the Marana
Planning Commission on August 27, 1997, and the Planning Commission recommended 6-0 that
the Town Council approve the preliminary plat, with conditions; and
WHEREAS, the Marana Town Council has heard from the representative(s) of the owner,
staff, and members of the public at the regular Town Council meetings held December 16, 1997,
January 20, 1998, and February 17, 1998, and has determined that the La Mirage preliminary plat
submitted by ICON Consultants USA, Inc. should be approved, with conditions.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council ofthe Town of Maran a
that the preliminary plat for 508 single family detached home lots on 138.27 acres of property
located within a portion of the North 1/2 of Section 26, Township 11 South, Range 11 East, be
approved, subject to the following conditions:
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1.
The developer shall take suitable measures to recover significant archeological materials
pursuant to the recommendation of a state-certified archeologist, and the developer shall
consult with such persons and the State Historic Preservation Office/Arizona State Museum
before any ground disturbances are made. The developer shall work with the Arizona State
Museum to implement an acceptable recovery program pursuant to state law in the event that
any burial remains are discovered during the project development.
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Marana. Arizona Resolution No. 98-04
Page 1 of 3
2. Prior to the approval of the Final Plat, the developer shall enter into a Water Service
Agreement with the Town of Mar ana.
3. A wastewater treatment plant approved by Pima County and the Town of Maran a shall be
completed and accepted for operation by Pima County prior to the issuance of any occupancy
permits for any dwelling unit.
4. The golf course, clubhouse and related parking necessary to support course play, which are
shown on page 10 ofl 0 of the Preliminary Plat shall be completed in Phase I of the project.
5. A primary vehicular access to the project other than Grier Road and acceptable to the Town
shall be provided prior to the issuance of occupancy permits for any dwelling units.
6. Construction traffic for this project shall not utilize Grier Road.
7. Prior to approval of the Final Plat, the Rancho Marana Specific Plan shall be amended to
reflect the realignment of the secondary arterial shown in the specific plan which bisects the
subj ect property.
8. All public rights-of-way required to develop the project which are located on property
included within the La Mirage Estates subdivision or on property owned or controlled by the
developer shall be dedicated either by the Final Plat or by separate instrument.
9. The property contained in the preliminary plat shall be annexed into a fire district prior to the
sale of any lots within the subdivision.
10. At the time of Final Plat approval, the developer shall either:
a. Record against the residential lots covenants requiring at least one person occupying
the dwelling unit to be 50 years of age or older; or
11.
b. Show on the Final Plat that one (1) acre near the clubhouse has been set aside for
open space for recreation use.
A development agreement shall be negotiated and finalized between the Town and the
developer prior to approval of the Final Plat.
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Marana, Arizona Resolution No. 98.04
Page 2 of 3
PASSED AND ADOPTED by the Mayor and Council of the Town of Maran a, Arizona, this
17th day of February, 1998.
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Mayor ORA MAE RN .
APPROVED AS TO FORM:
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Daniel J. Ifi5C'huli
Town Attorney
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Marana, Arizona Resolution No. 98-04
Page 3 of 3
EXHIBIT "A"
LOCATION MAP OF THE DEVELOPMENT
WITH LEGAL DESCRIPTION
[Please slip the location map of the development
behind this cover sheet.]
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LOCATION MAP
SCAlE: r ~ 1 MILE
SECTION 26, T. 11 S., R.l1 E., G &: SRM,
TOWN OF MARANA. PIMA COUNTY, ARIZONA
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6.40'1fI - GRADE BREAK 'ELEVATION
* - ACCESS FRONTAGE
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11111\ A 1 - CURB ACCESS RAMPS PER PC/COT
STANDARD DETAJL 207 .
- PLAT BOUNDARY UNE
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TOWN OF MARANA
AGREEMENT FOR CONSTRUCTION
OF WATER FACILITIES
AND PROVISION OF WATER UTILITY SERVICE
THIS AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES, entered
into as of the _ day May, 1999, by and between the TOWN OF MARANA,
ARIZONA, an Arizona municipal corporation, (hereinafter referred to as "Marana") and
Doerken Properties, Inc., a corporation qualified to do business in Arizona (hereinafter
referred to as the "Developer" or "Applicant"), is for the construction of Water Facilities
necessary to provide water utility service to its Property, which is more specifically
described on Exhibit "A" attached hereto and made a part hereof, (hereinafter the
"Property"), on the following terms and conditions:
RECITALS
WHEREAS, the Developer warrants it is qualified to do business in Arizona and
is desirous of securing water to the area more particularly described in Exhibit "A"
attached hereto and made a part hereof, and will construct certain water facilities and
transfer the ownership thereof to Marana for such purposes: and
WHEREAS, Marana is willing, to supply water to Developer in accordance with
the Municipal Code of the Town of Marana, and in accordance with the terms of this
Agreement,
COVENANTS
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and
agreements set forth below, the parties agree as follows:
1. DEFINITIONS
1.1 Applicant or Developer: Doerken Properties, Inc., and its successors and
assigns.
1.2 Property: That certain property or real estate development known as "La
Mirage" and as shown on Exhibit "A" attached hereto and made a part hereof.
1.3 Water Facilities: Public water facilities and appurtenances which are to be
constructed under this Agreement which are located within public rights-of-way or
dedicated easements, and which upon completion by Developer and inspection and
acceptance by Marana, are deeded to Marana for operation and maintenance, including
but not limited to water mains, valves, pipelines, booster pumps, wells, reservoirs and
all other water facilities necessary for service to the Property and appurtenant to the
municipal water supply system of the Town of Marana.
1.4 Water System: Water facilities, including water mains, valves, pipelines,
booster pumps, wells, reservoirs and all other water facilities and appurtenances
necessary for service to the Property and appurtenant to the municipal water supply
system of the Town of Marana.
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2. CONSTRUCTION OF WATER FACILITIES
2.1 Plans and Specifications. Developer shall design and construct, at
Developer's own expense, the Water Facilities in accordance with approved Plans and
Specifications. The approved Plans and Specifications shall conform to the design
standards of the City of Tucson Water Department, and the Town of Marana Town
Water Code, and be capable of serving the water needs of all commercial and non-
commercial development, and be sized to serve the maximum authorized development
of the Property and shall designate the point of interconnection referred to in 92.6. A
copy of said approved On-Site Plans and Specifications for the Water Facilities shall be
submitted by phases of project before building permits for that phase are issued per
911.6 of this Agreement. For the purposes of this paragraph, the provisions of the
Marana Code 914.4 and 14.5 and any successor or amendatory provisions are
incorporated herein as though set forth in full and the Developer, except to the extent to
do so would be inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the Applicant/Customer/Developer described therein.
(a) Water Production and Storage/Plans and specifications. Developer
shall design and construct, at Developer's own expense, the water production and water
storage facilities in accordance with approved Plans and Specifications. The approved
Plans and Specifications shall conform to the design standards of the City of Tucson
water department and the Town of Marana Water Code, and be capable of serving the
water needs of all commercial and non-commercial development of the Property, and
be sized to serve the maximum authorized development of the Property. The water
production facilities shall include, at a minimum, two (2) wells, each drilled to a depth of
at least eight hundred feet (800'); provided however, that the first well shall be at least
ten inches (10") in diameter, and provided further that the second well must be drilled
prior to the commencement of the third phase of Developer's La Mirage Subdivision.
The water storage facilities shall include one (1) storage tank of a minimum of
twenty- five thousand (25,000) gallons; provided that the total storage capacity for the
La Mirage Subdivision shall equal or exceed that amount needed to deliver twenty-four
(24) hours' worth of water demand calculated on the basis of water usage of twice the
average day demand, together with three hours fire flow of one thousand (1,000)
gallons per minute (excluding well capacity and water storage in the distribution
system), but not more than is necessary to meet the requirements of the Northwest Fire
District. The water production and storage plans shall be constructed and accepted by
Marana's Utilities Director prior to Marana issuing Developer a Certificate of Occupancy
for any residential unit.
2.2 Plans and Specifications. Approval. The Plans and Specifications for the
Water Facilities shall be reviewed and approved in writing by Marana's Utilities Director
and the Arizona Department of Environmental Quality or the Pima County Department
of Environmental Quality prior to issuance of any water facilities construction permits by
Marana. No work shall commence until Marana has issued a Water Facilities
construction permit.
2.3 Contractor. The Water Facilities shall be constructed by a contractor
properly licensed by the state of Arizona and in accordance with Plans and
Specifications prepared by a qualified registered professional engineer. The location in
the ground and manner of installation shall comply with the requirements of all public
agencies having authority to prescribe regulations with respect to the location and
manner of installation.
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Doerkin La Mirage Water Service Agreement Org 5-18-99 (Rev 1).DOC10411.00001
2.4 Permits and Licenses. Applicant shall obtain all necessary permits and
licenses, pay all fees and comply with all laws, ordinances and regulations related to the
public health, safety, welfare and construction of the Water System.
2.5 Materials. Workmanship. Eauipment and Machinerv. All materials shall be
new and both the workmanship and materials shall be of good quality and shall meet
the combined specifications and standards of (a) the American Water Works
Association Standards, (b) the Arizona Department of Environmental Quality (ADEQ),
(c) the Pima County Department of Environmental Quality (PCDEQ), (d) all local
regulatory agencies and (e) the plans and specifications incorporated herein referenced
in 92.1. Developer shall repair, or remove and replace, at Developer's own expense
and at Marana's convenience, workmanship or materials which do not meet the
described criteria or which prove to be defective at any time within one year from the
date of the final acceptance of Applicant's work by Marana.
2.6 Connectina New Facilities. Upon completion of the Water Facilities, the
Developer will dedicate the Water Facilities and Water System to Marana, without cost
to Marana, and Marana shall thereafter operate the Water Facilities as an integral part
of its municipal water utility. The Water Facilities constructed pursuant to this
Agreement shall provide a point of connection to Marana's existing water facilities at the
closest point to Developer's facilities as directed by Marana for Service Area
requirements. In the event that such point of interconnection falls outside the
boundaries of the Property, Marana will construct that portion of the facilities falling
outside the Property with funds provided for that purpose by Developer through
easements provided by the Town of Marana. In order to allow Marana to use the Water
Facilities for the delivery of water to off-site customers, Developer shall install, at
Marana's expense, dual meters at the point of interconnection. After commencing water
service to the Property, for the purposes of this paragraph, the provisions of the Marana
Code 914-7 and any successor or amendatory provisions are incorporated herein as
though set forth in full and the Developer, except to the extent to do so would be
inconsistent with the provisions thereof, is deemed for the purposes hereof to be the
Applicant/Customer/Developer described therein.
2.7 Inspection. Testina and Correction of Defects. Developer shall comply
with the inspection and testing requirements of ADEQ and PCDEQ and Marana for the
facilities to be constructed hereunder, PROVIDED HOWEVER, said requirements shall
be reasonable and shall not cause the Developer unwarranted delays in the ordinary
course of construction. Developer shall promptly notify Marana when the Water
Facilities under construction are ready for inspection and testing, and upon 24 hours
written notice to the Town Marana shall immediately thereafter inspect the same
promptly after being so notified. For the purpose of inspection and testing of everything
covered by this Agreement, or performance of the Work thereon (the "Work"),
Developer shall give Marana and any inspectors appointed by it, free access to the
construction site and facilitate the proper inspection of such materials, including
procurement data, and the Work and shall furnish them with full information whenever
requested as to the progress of the Work in its various stages. The approval of the
Work by any such inspector shall not relieve Developer from its obligation to comply in
all respects with the instructions and specifications to make the Work a finished job of
its kind, completed in accordance with"the best practices. Developer agrees that no
inspection by or on behalf of Marana shall relieve Developer from its obligation to do
and complete the Work in accordance with this Agreement. If at any time before the
final completion and acceptance of the Work, but no later than one year after
construction, any part of the Work is found to be defective in any way, or in any way
fails to conform to this Agreement, Marana is hereby expressly authorized to reject or
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Doerkin La Mirage Water Service Agreement Org 5-12-99 (Rev 1).DOCI0411.00001
revoke acceptance of such defective or deficient Work and require Developer to repair.
replace or make good on such defective Work. Marana specifically reserves the right to
withhold approval and to forbid connection of the Water Facilities constructed pursuant
to this Agreement to Marana's water utility system unless such Water Facilities have
been constructed in accordance with the plans and specifications approved by Marana
and are satisfactory to Marana upon inspection and testing. Developer agrees that it
will promptly correct all defects and deficiencies in construction, materials and
workmanship upon request by Marana made subsequent to inspections by Marana.
2.8 Chanae Orders. In the event that Developer makes (or is desirous of
making) any material changes to the design of the Water Facilities which are to be
constructed in accordance with the Water Plans referred to in 92.1 of this Agreement.
The Developer shall (a) obtain Marana's prior written consent to such material changes
or modifications, (b) pay to Marana a reasonable fee for its time in reviewing such
material changes or modifications and (c) pay the additional cost of construction
associated with the same, if any.
2.9 Invoices. Developer agrees to furnish Marana as an exhibit, within thirty
(30) days after completion of construction, copies of all Developer, subcontractor,
vendor and all other invoices for all engineering and other services, materials
purchased, materials installed, construction performed, equipment provided and all else
done directly in connection with construction pursuant to this Agreement at the actual
cost thereof.
2.10 Liens. Developer acknowledges its duty to obtain to the satisfaction of
Marana lien waivers and releases from all third parties providing labor, materials or
services hereunder. Developer hereby irrevocably waives any rights it may now have or
which it may acquire during the course of this Agreement to record liens against Marana
or its property. Developer shall also pay, satisfy and discharge all mechanics', material
men's and other liens, and all claims, obligations and liabilities which may be asserted
against Marana or its property by reason of, or as a result of, any acts or omissions of
Developer, its employees, agents, servants, suppliers, or subcontractors, or the
employees, agents, servants or suppliers of its subcontractors, in connection with or
relating to the performance of this Agreement.
2.11 "As-Built" Plans. Developer agrees to furnish Marana, within thirty (30)
days after completion of construction, "as-built" drawings in both handwritten and
electronic format certified as to correctness by an engineer registered in the State of
Arizona showing the locations of all water mains, hydrants, valves, and service
connections to all structures served from facilities constructed pursuant to this
Agreement. Marana shall have the right to withhold water service to Developer pursuant
to this Agreement until this condition is satisfied.
2.12 Risk. Developer shall carry on all activities associated with or comprising
the Work required hereunder at its own risk until the Water Facilities are fully completed
and accepted by Marana and will, in case of accident, destruction or injury to the work
or material before such final completion and of the Water Facilities, replace or repair
forthwith the Work or materials so injured, damaged or destroyed, to the satisfaction of
Marana and at Developer's own expense.
2.13 Liabilitv. Through and including that period extending for one year after
Marana's acceptance of the Work, Developer hereby assumes all of the responsibility
and liability for injury or death of any person, or loss for damage to any property
contributed to or caused by the active or passive negligence of Applicant! Developer, its
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Doerkin La Mirage Water Service Agreement Org 5-12-99 (Rev 1).DOCI0411.00001
agents, servants or employees in the execution of and performance of the activities and
Work contemplated herein or in connection therewith. Accordingly, Developer will
indemnify, appear and defend and hold the Town, and its elected officials, employees,
agents and consultants ("Marana") harmless from and against claims, (except and to
the extent that the same is caused or contributed to by Marana) or expenses, including
penalties and assessments, to which they or any of them may be subject to by reason
of such injury, death, loss, claim, penalty, assessment or damage, and in case any suit
or other proceeding which shall be brought on account thereof, Developer will assume
the defense of Marana at Developer's expense and will pay all judgments rendered
therein.
(a) Marana hereby assumes all of the responsibility and liability for injury
or death of any person, or loss for damage to any property contributed to or caused by
the active or passive negligence of Marana, its agents, servants or employees caused
by interconnecting the Water Facilities to any off-site water facilities (as provided under
Section 2.6, above), and, in that event, Marana will indemnify, appear and defend and
hold Developer, its employees, agents and consultants ("Developer') harmless from
and against claims, (except and to the extent that the same is caused or contributed to
by Developer) or expenses, including penalties and assessments, to which they or any
of them may be subject to by reason of such injury, death, loss, claim, penalty,
assessment or damage, and in case any suit or other proceeding which shall be brought
on account thereof, will pay all judgments rendered therein.
2.14 Insurance. Developer agrees to procure and cause Marana to be an
"additional insured" upon and maintain all of the insurance policies described below,
including insurance covering the obligations assumed by Developer under
subparagraphs (a), (b) and (c) hereof. Such coverages shall be in amounts adequate to
cover the risk commensurate with the work to be performed under this Agreement.
Certificates evidencing said insurance and status of Marana shall be provided to
Marana.
(a) Workers' Compensation Insurance. Worker's compensation and
occupational disease and disability compensation in the benefit amounts as required by
the laws and regulations of the State of Arizona;
(b) Liabilitv Insurance. Comprehensive general liability insurance,
including operations and protective liability coverages. When the work to be performed
requires blasting, Developer's insurance shall specifically cover that risk; and
(c) Automobile Insurance. Comprehensive automobile liability
insurance covering all owned and non-owned automobiles and trucks used by or on
behalf of Developer, in connection with the work.
2.15 Easements. For the purposes of this paragraph, the provisions of the
Marana Code 914-3-7 and any successor or amendatory provisions are incorporated
herein as though set forth in full and the Developer, except to the extent to do so would
be inconsistent with the provisions thereof, is deemed for the purposes hereof to be the
Applicant/Customer/Developer described therein. Developer shall provide to Marana
recordable easements and required surveying, over, under, and across all portions of
the main and pipeline routes as may be necessary to serve each parcel or lot within
Developer's development. If Developer's development involves road construction, all
roads and drainage ways will be brought to grade by Developer prior to the
commencement of the installation of the Water Facilities. No pavement or curbs shall
be installed prior to completion of the Water Facilities.
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Doerkin La Mirage Water Service Agreement Org 5-12-99 (Rev 1).DOCI0411.00001
2.16 Service Lines. Valves. Meters and Meter Service. Developer shall install,
to Marana specifications, automated meters, sensors, and the other necessary
equipment for automated meter reading for all water services on the Property. For the
purposes of this paragraph, the provisions of the Marana Code 914-3-6 and any
successor or amendatory provisions are incorporated herein as though set forth in full
and the Developer, except to the extent to do so would be inconsistent with the
provisions thereof, is deemed for the purposes hereof to be the Applicant/Customer/
Developer described therein. Provided that Developer is in compliance with this
subparagraph, Marana agrees to waive any water connection or meter installation fees
for new connections within the Property.
2.17 No Permanent Structures on Easements. No permanent structures (Le.,
masonry walls, fences, etc.) shall be constructed on or through a water easement
without the expressed written consent of Marana. For the purposes of this paragraph,
the provisions of the Marana Code 914-3-7 and any successor or amendatory
provisions are incorporated herein as though set forth in full and the Developer, except
to the extent to do so would be inconsistent with the provisions thereof, is deemed for
the purposes hereof to be the Applicant/Customer/Developer described therein.
2.18 Title. All materials installed, Water Facilities constructed and equipment
provided by Developer in connection with construction of the Water Facilities under this
Agreement and the completed facilities as installed shall, upon Marana's written
acceptance of the same, become the sole property of Marana, and full legal and
equitable title thereto shall be then vested in Marana, free and clear of any liens, without
the requirement of any written document of transfer to Marana or further acceptance by
Marana. Developer agrees to execute or cause to be executed promptly such
documents as legal counsel for Marana may request to evidence such conveyance of
good and merchantable title to said Water Facilities free and clear of all liens.
3. COSTS OF CONSTRUCTION OF WATER FACILITIES
3.1 Developer shall, at Developer's sole cost expense, install all the Water
Facilities shown on the approved plans and specifications, and shall hold Marana free
and harmless from any claim for the construction costs or any defects in such Water
Facilities. For the purposes of this paragraph, the provisions of the Marana Code 914-4
and 14-5 and any successor or amendatory provisions are incorporated herein as
though set forth in full and the Developer, except to the extent to do so would be
inconsistent with the provisions thereof, is deemed for the purposes hereof to be the
Applicant/Customer/Developer described therein.
3.2 Upon request by Marana and direction Developer shall, at Developer's
sole cost expense, make any and all alterations to any existing water distribution
system, either on-site or off-site, necessitated by paving, drainage, or other
improvements caused by the construction of the Developer's development.
3.3 The Water Facilities shall be transferred to the ownership of Marana upon
completion. Concerning sales of water produced from wells constructed by Doerken
and dedicated to the Town pursuant to this Agreement, Marana shall rebate to
Developer ten percent (10%) of all revenues it receives from the sale of that water to
any customer not located within the Property for a period of ten (10) years commencing
with the date Marana accepts the facilities as provided under Section 2.18 above.
Marana shall pay such rebates on a quarterly basis, on the first day of January April,
July and October. Rebates shall in no event exceed the total cost of the Wate~
Facilities. After ten years, Marana shall have no further obligation to pay Developer
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Doerkin La Mirage Water Service Agreement Org 5-12-99 (Rev 1).DOCI0411.00001
rebates from any off-site revenues. Marana shall not deliver water onto the Property
from off-site sources through interconnections to Marana's existing facilities for the
purposes of minimizing rebates available to Developer under this subsection.
4. SECURITY REQUIREMENT
4.1 In accordance with Arizona Revised Statutes and the Marana Municipal
Code, this Agreement is contingent upon Developer furnishing Marana with such
security as may be appropriate and necessary, as determined by the Marana Utility
Director, to assure Marana that Developer will perform all the Water Facilities and Water
System construction described above, and all other obligations now existing or accruing
under this Agreement.
5. WA TER SERVICE; WATER RIGHT
5.1 For the purposes of this paragraph, the provisions of the Marana Code
314-5 and any successor or amendatory provisions are incorporated herein as though
set forth in full and the Developer, except to the extent to do so would be inconsistent
with the provisions thereof, is deemed for the purposes hereof to be the
Applicant/Customer/Developer described therein. Marana shall be under no obligation
to provide water utility service to Developer or the Property until each and every
condition of this Agreement has been met and satisfied. Marana agrees that upon
receipt of all applicable approvals and satisfaction of all of Developer's obligations under
this Agreement that it will then provide water utility service to the Developer's Property.
5.2 Developer agrees to assign to Marana, as a condition of Marana providing
water utility service, every portion of its Irrigation or Type 1 Non-irrigation Grandfathered
Groundwater Rights as those are defined by law as may be appurtenant to lands
conveyed and dedicated to Marana in connection with the subdivision of the La Mirage
development. Developer agrees to execute and deliver all forms necessary to effect the
transfer of these water rights to Marana concurrently with such dedication.
5.3 Marana will provide the State of Arizona Designation of Assured Water
Supply status for the Property upon acceptance of the Property into Marana's service
area by the Central Arizona Groundwater Replenishment District (CAGRD). Developer
understands and agrees as a condition precedent to receiving service from the Water
System and Water Facilities to the Property that a groundwater replenishment fee will
be added to the water bills for Marana's customers, including those living within the
Property, to fund the replenishment of groundwater.
6.
TERMINATION OF AGREEMENT
1
6.1 In the event Developer does not complete all of the Water Facilities and
Water System construction described in Article 2, within three (3) years from the date of
this Agreement, this Agreement shall be null and void, canceled and of no further force
and effect.
6.2 Pursuant to A.R.S. 338-511, Marana may cancel this contract within three
years after its execution, without penalty or further obligation if any person significantly
involved in initiating, securing, drafting or creating this Agreement on behalf of Marana
is, at any time while this Agreement or any extension of this Agreement is in effect, an
employee or agent of Developer in any capacity or consultant with respect to the subject
matter of this Agreement. Cancellation under this section by Marana shall be effective
when written notice from Marana is received by Developer unless the notice specified a
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Doerkin La Mirage Water Service Agreement Org 5.12.99 (Rev 1).DOCI0411.00001
later time. In addition to the right to cancel as provided herein, Marana may recoup any
fee or commission paid or due to any person significantly involved in initiating,
negotiating, securing, drafting or creating this Agreement on behalf of Marana from
Developer arising as the result of this Agreement.
7. INDEMNIFICA liON
7.1 With respect to the Water Facilities and Water System constructed
pursuant to this Agreement, for a period of one year following Marana's acceptance of
the facilities to be dedicated to Marana hereunder, Developer agrees to indemnify,
appear, defend and hold harmless Marana and its employees (as previously defined)
from any and all claims or causes of action which may be asserted against Marana for
negligent design or construction of the Water Facilities, and from claims that may be
asserted against Marana for inadequate fire protection capacity arising from the
negligence of Developer or its employees or agents. The alleged inadequacy of fire
protection capacity shall not be construed as Developer's negligence if Developer's
plans have been approved by the Northwest Fire District.
8. NOTICE
8.1 Communications hereunder shall be sent to the parties at the following
addresses or to such other addresses as the parties may advise in writing:
To Marana:
With copy to:
and copy to:
To Applicant:
with a copy to:
Utilities Director
Town of Marana Water Department
12775 North Sanders Road
Marana, Arizona 85653
Town Attorney
Town of Marana
13251 N. Lon Adams Road
Marana, Arizona 85653-9723
Martinez & Curtis, P.C.
Attention: William P. Sullivan
2712 N. 7th Street
Phoenix, Arizona 85006-1090
Doerken Properties, Inc.
Attention: Dr. Peter W. Doerken
11835 Olympic Boulevard, Suite 975
West Los Angeles, California 90064
Michael F. McNulty, Esq.
Brown & Bain, P.A.
One S. Church Ave. Suite 1900
Tucson, Arizona 85701
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9.
SEVERABILITY
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9.1 In the event any portion of this agreement shall be determined to be
invalid, such invalidity shall not render void any remaining portions of this agreement
which can be given effect, and they shall remain in force and effect.
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Doerkin La Mirage Water Service Agreement Org 5-12-99 (Rev 1).DOCI0411.00001
10. ASSIGNMENT
10.1 This Agreement shall be binding upon and for the benefit of the heirs,
administrators, executors, successors and assigns of Marana and Developer.
11. MISCELLANEOUS
11.1 This instrument contains the sole and only agreement of the parties
relating to this Agreement and correctly sets forth the rights, duties and obligations of
each to the other as of its date. Any prior agreements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force and effect. This
instrument contains the entire agreement between the parties, and it shall not be
amended, altered or changed, except by written agreement signed by the parties.
11.2 All executed agreements shall remain on file in Marana offices and shall
be made available for public review upon request.
11.3 This Agreement is entered into under and shall be governed by the laws of
the State of Arizona.
11.4 This Agreement has been arrived at by negotiation and shall not be
construed against any party to it or against the party who prepared the last draft.
11.5 Captions and headings are for index purposes only and shall not be used
on construing this Agreement.
11.6 BEFORE THIS AGREEMENT SHALL BECOME EFFECTIVE AND
BINDING UPON EITHER MARANA OR DEVELOPER, IT MUST BE APPROVED BY
THE MAYOR AND COUNCIL OF THE TOWN OF MARANA; AND ALL EXHIBITS
REFERRED TO IN THIS AGREEMENT ARE TO BE COMPLETED, SUBMITTED,
REVIEWED, AND APPROVED THEREOF AND BEEN ACCEPTED BY THE TOWN
UTILITIES DIRECTOR PRIOR TO ANY BUILDING PERMITS BEING ISSUED. In the
event that it is not so approved, this Agreement shall be null and void and of no force or
effect whatsoever. The remedies provided in this Agreement in favor of Marana shall
not be deemed its exclusive remedies but shall be in addition to all other remedies
available at law or in equity. No waiver by Marana of any breach by Developer of any
provision of this Agreement nor any failure by Marana to insist on strict performance by
Developer of any provision of this Agreement shall in any way be construed to be a
waiver of any future or subsequent breach by Developer or bar the right of Marana to
insist on strict performance by Developer of the provisions of this Agreement in the
future. Developer is an independent contractor and not an agent or employee of
Marana.
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11.7 This Agreement, and all rights and obligations hereunder, including those
regarding water service to the Developer, shall be subject to all provisions of the
Municipal Code of the Town of Marana and all applicable rates, fees, charges and tariffs
of the Marana Water Utility as approved by the Mayor and Council of the Town of
Marana now or as they may be changed and approved by the Mayor and Council of the
Town of Marana in the future.
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Doerkin La Mirage Water Service Agreement Org 5-12-99 (Rev 1).DOCI0411.00001
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year
first above written.
TOWN OF MARANA
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DEVELOPER
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ACKNOWLEDGMENT
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STATE OF J.RliilJr IA )
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COUNTY OF toJ fflf~/a4
This instrument as acknowledged be~ re me this da~ 1:1t'd)
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Doerkin La Mirage Water Service Agreement Org 5-18-99 (Rev 1).DOCI0411.00001
TANGERINE ROAD CONNECTION
CONCEPTUAL PLAN
(The attached six maps - Figures 1, lA, 1 Band 2 through 4-
depict the Tangerine Road conceptual alignment, initial and
ultimate construction phases. They are excerpted from the
Tangerine Road Connection Preliminary Design Concept
Report, dated November 16, 1998, and prepared by ICON
Consultants USA, Inc. on behalf of Doerken Properties, Inc.)
EXHIBIT E
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REVISED: 11-16-98
PHASE II
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11-11-98
TOMA981
LEWIS
ROCA
LLP
LAWYERS
Phoenix Office
40 North Central Avenue
Phoenix, Arizona 85004-4429
Facsimile (602) 262-5747
Telephone (602) 262-5311
Tucson Office
One South Church Avenue Suite 700
Tucson, Arizona 85701-1620
Facsimile (520) 622-3088
Telephone (520) 622-2090
MC! !D:
697-6314
Frank S. Bangs, Jr.
(520) 622-2090
Internet: fsb@lrlaw.com
Our File Number
37670.00001
May 24, 1999
Daniel J. Hochuli, Esq.
Town Attorney, TOWN OF MARANA
c/o Daniel J. Hochuli & Associates, P.c.
220 East Wetmore, Suite 110
Tucson, Arizona 85705-1748
VIA HAND DELIVERY
Re: La Mirage subdivision, development agreement; Exhibits A, B and E
Dear Dan:
Attached for inclusion with the revised final draft of the development
agreement approved by Town Council on May 18 are Exhibits A, Band E. Based on
my discussions with Jocelyn Entz, it's my understanding that you will forward the final
agreement to her for transmittal, together with the Water Service Agreement, to Peter
Doerken for signature. He in turn will return both executed documents to the Town
Clerk.
I would appreciate it if you could provide me a copy of the development
agreement as revised to reflect the deletion of reference to Exhibit F and the change
agreed upon during the Council meeting relating to manufactured housing.
We appreciate your cooperation on the development agreement, particularly
your help in resolving the manufactured housing issue with Town Council. Please call
me if you have any questions.
Enclosures
cc: Jocelyn Entz, Town Clerk (w/o enclosures)
Joel Shapiro, Planning Department (w/o enclosures)
Lanny Nichols, ICON (w/o enclosures)
Peter W. Doerken (w/enclosures)
74344.01