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HomeMy WebLinkAboutResolution 2009-004 development agreement with marana mortuary & cemetery propertiesMARANA RESOLUTION N0.2009-004 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A DEVELOPMENT AGREEMENT WITH MARANA MORTUARY & CEMETERY PROPERTIES, L.L.C. WHEREAS, staff has been in discussions with representatives of the Marana Mortuary & Cemetery Properties, L.L.C., concerning the development of a cemetery at the northwest corner of Barnett and the future Tangerine Farms Roads; and WHEREAS, the Mayor and Council find that the terms and conditions of the Marana Mortuary & Cemetery Development Agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the development agreement between the Town of Marana and Marana Mortuary & Cemetery Properties, L.L.C., attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. BE IT FURTHERED RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and future tasks required or beneficial to carry out the terms, obligations, and objectives of the aforementioned agreement. PASSED AND ADOPTED by the Mayor and Council of the Town o Marana, Arizona, time C~RFORgrp ~ :. °~ + SEAL ~ d ~,d~ ~~iieoue~v'fi ®~~ ATTEST: ~,~~ ~1~-`~`si ocelyn C. ronson, Town Clerk this 6th day of January, 2009. ~~'I l'~~~~~ a~~..a`'4t~~11"'P~., s Mayor d Honea APPROV ASl'I'Q,FORM: Frank Cas~'dy, T6wn Ate! Marana Resolution No. 2009-004 F. ANN RODRIGUEZ, RECORDER DOCKET: 13475 RECORDED BY: K O PAGE: 184 DEPUTY RECORDER °F~I~ ~'~ ~~~ NO. OF PAGES: SEQUENCE: 15 20090100097 1861 PE-2 w ~ 01/15/2009 SMARA y '` ~ 51 11 TOWN OF MARANA r N• \ , AG : ATTN : TOWN CLERK `~RIZO~Q' 11555 W CIVIC CENTER DR MAIL MP,RANA AZ 85653 AMOUNT PAID $ 13.00 MARANA CEMETERY DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA This Development Agreement (this "Agreement") is entered into by and between the Town of MARANA, an Arizona municipal corporation (the "Town") and MARANA MORTUARY & CEMETERY PROPERTIES, L.L.C., an Arizona limited liability company (the "Owner/Developer"). The Town and the Owner/Developer are collectively referred to in this Agreement as the "Parties," and each is sometimes individually referred to as a "Party." RECITALS A. The Owner/Developer owns a vacant parcel of property consisting of approximately 23.49 acres, located immediately north of Barnett Road, with the future right-of--way of Tangerine Farms Road crossing the easternmost 250 feet of the parcel (the "Property"). B. The Owner/Developer intends and desires to develop a new cemetery and mortuary facility (the "Cemetery/Mortuary") on the Property. C. Establishing clearly defined expectations, rules and regulations is necessary to ensure that the Parties' vision for the ultimate development of the Cemetery/Mortuary can be carried out as construction of the Cemetery/Mortuary occurs in phases over the course of many years. D. The Property is located on property zoned "A" (Small Lot Zone), and has received the Town of Marana approval of a Significant Land Use Change, prior to the resolution approving and adopting this Agreement. E. The Property is legally described in Exhibit A attached to this Agreement. F. The Town and the Owner/Developer desire to establish certain agreements pursuant to A.R.S. § 9-500.05 to facilitate development of the Property by providing for, among other things, the conditions, terms, restrictions, and requirements for development and public infrastructure and the financing of public infrastructure. G. The development of a Cemetery/Mortuary on the Property is in compliance with the Town's adopted and approved General Plan (as defined in A.R.S. § 9-461). AGREEMENT ~~ Now, TxEREFORE, in consideration of the mutual promises made in this Agreement, the °', Parties agree as follows: `'an Article 1. Background yy ~6y~M r>, ~,~ 1.1. Incorporation of the Recitals. The foregoing Recitals are incorporated here by this °~~ d.~.~ reference. ,~i;l~ (00008130.DOC / 6} MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/2008 11:23 AM -1- ~~ 1.2. Proposed Uses. The Cemetery/Mortuary consists of afull-service mortuary, crematorium and cemetery facility (which may include mausoleum and other burial facilities), with accessory chapel, flower shop, office and utility/storage uses. Exhibit B attached to this Agreement is a conceptual description of the master site plan for the Cemetery/Mortuary. Owner/Developer shall be allowed to use those areas of land not immediately necessary for the Cemetery/Mortuary as described in the accepted Significant Land Use Change application that consist of uses such as open space commercial uses, such as a commercial nursery, tree farm, continuing the current agricultural use or other uses which maintain an open space character for the area. If a use not considered being of an open space character is proposed, it shall not limit the Owner/Developer from making separate application to the Town for approval of such commercial use. 1.3. Definitions. The following definitions shall apply to this Agreement: 1.3.1. "Development Regulations" is defined in paragraph 2.1 below. 1.3.2. The "Property" is defined in Recital A above and described in Exhibit A attached to this Agreement. 1.3.3. "Public Improvement Costs" means all costs, expenses, fees and charges actually incurred and paid by or on behalf of Owner/Developer to contractors, architects, engineers, surveyors, governmental agencies, other professionals and consultants, and other third parties for materials, labor, planning, design, engineering, surveying, site excavation and preparation, governmental permits and payments, payment and performance bonds, other professional services, and all other costs and expenses related or incidental to and reasonably necessary for, the acquisition, improvement, construction, installation, or provision of the Public Improvements, together with all costs associated with the acquisition of lands, rights- of-way and easements either to be dedicated to the Town or upon which Public Improvements are to be constructed, with Interest as provided in this Agreement. Article 2. Development of the Property. 2.1. Development Regulations. The development of the Property shall be governed by (i) the Marana Land Development Code, including the written rules, regulations, substantive procedures, and policies relating to development of land, adopted or approved by the Mayor and Council (collectively the "Marana Development Code") in effect on the effective date of this Agreement, (ii) the SLUC approval, and (iii) this Agreement. In the event of any express conflict, the terms of this Marana Development Code shall control over the SLUC approval and this agreement. The requirements of this paragraph are collectively referred to as the "Development Regulations." 2.2. Development Review. The Property shall be developed in a manner consistent with the ~-~ti Development Regulations and this Agreement, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for "~,." the Property. So long as the Owner/Developer does not change the cemetery use and permitted interim uses for a portion of the Property, the Town will not require a new approval process for 'r ;i~~ changes in the site plan. Upon the Owner/Developer's compliance with the applicable '~,, development review and approval procedures and substantive requirements of the Development ''°~~ is ~' Regulations, the Town agrees to issue such permits or approvals for the development of the Cemetery/Mortuary as may be requested by the Owner/Developer. {00008130.DOC / 6) MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/2008 11:23 AM -2- 2.3. Temporary Access to Barnett Road. The Town shall allow continuous vehicular and utility access from Barnett Road to the Property until vehicular and utility access is provided via Tangerine Farms Road. The Town anticipates that a future drainage channel and linear park will be constructed in the current location of Barnett Road (the "Barnett Channel"), and that Barnett Road will be closed to public vehicular traffic and its right of way converted to Town real property. Consequently, the Town is not obligated to allow vehicular or utility access from the Property to the current location of Barnett Road after Tangerine Farms Road is open to the public. The Owner/Developer shall design and construct the Initial Improvements so that in the future, when permanent vehicular access is provided to the east via the future Tangerine Farms Road, the temporary public vehicular access to Barnett can be terminated. Also the initial utility services will be designed and constructed for future access from Tangerine Farms Road. When the Tangerine Farms Road utility connection is made, the Town will pay for reconnection to the Cemetery/Mortuary. The Owner/Developer will construct their improvements to tie the future connection to Tangerine Farms Road to their property line. 2.4. Drainage. The current natural drainage of the Property is toward the northwest. The Owner/Developer shall design the on-site drainage so that the Property will either drain to the south, to the east via conveyances under Tangerine Farms Road, once Tangerine Farms Road is improved, or retained on-site. Upon completion of the Barnett Channel, the Town shall allow the Property to drain directly to the Barnett Channel. Until the Barnett Channel is completed, the Owner/Developer shall provide on-site drainage retention/detention on the Property in conformance with Northwest drainage requirements on an interim basis until such time as Barnett Channel is available. 2.5. Alternate Development Plans. Nothing in this Agreement shall require the Owner/Developer to construct the Cemetery/Mortuary on the Property. The Owner/Developer shall give the Town written notice of its decision not to pursue the Cemetery/Nlortuary use on the Property. Upon receipt of the notice, the SLUC Approval shall be rescinded. Article 3. Owner/Developer's Contributions for Public Improvements 3.1. Tangerine Farms Road Right-of--Way Dedication. Within 120 days after the effective date of this Agreement, the Owner/Developer shall dedicate to the Town, free and clear of all liens and encumbrances, the easternmost 250 feet of the Property for the future construction of Tangerine Farms Road and associated improvements (Tangerine Farms Road). The dedication of the Right-of--Way by the Owner/Developer is conditioned on the Town's representation that the only use for the dedication is for the future construction of the Tangerine Farms Road. If any of the 250 foot dedicated right-of--way is not used for Tangerine Farms Road it shall be returned to the Owner/Developer at no cost to them. 3.2. Tangerine Farms Road Fair-Share Construction Contribution. The Owner/Developer shall contribute $366,818 toward the construction of Tangerine Farms Road, payable in ten equal annual payments of $36,681.80, beginning on the third anniversary of the effective date of approval of development plan No. DPR-08079, currently under review by the Town and continuing each anniversary thereafter until paid in full. The amount shall be secured by a deed of trust upon the mortuary portion of the Property. The Town will reasonably subordinate the deed of trust to any acquisition or construction financing for the Property. The dedication of the Right-of--Way and payment of the $366,681.80 is the total obligation of Developer for the {00008130.DOC / 6} MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/2008 1123 AM -3- Tangerine Farms Road when constructed. This paragraph does not create an affirmative Town obligation to build Tangerine Farms Road. In the event that Tangerine Farms Road is removed from the Town of Marana Major Routes Plan all funds contributed pursuant to this paragraph shall be returned to the Owner/Developer. 3.3. Tangerine Farms Road Construction Cooperation. The Town and the Owner/Developer shall cooperate in the construction of Tangerine Farms Road. The Town shall make every reasonable effort to maintain continuous public access to the Property during construction. The Owner/Developer shall grant reasonable slope and drainage easements and temporary construction easements as necessary for the construction of the Tangerine Farms Road. 3.4. Bank Protection. In compliance with Town Ordinance 99.02, the Developer shall pay $500.00 per acre of affected Property for bank protection. The total obligation of Developer for the Project is $11,745 ($500 x 23.49 affected acres). Full payment shall be made prior to issuance of a grading permit for any portion of the Property 3.5. Water Infrastructure. The Owner/Developer shall provide to the Utilities Director's satisfaction the necessary plans and models that provide the required water main extension for potable and non- potable water, water demand including fire protection modeling and the possibility of participating in storage, booster plant and well needs if the modeling shows the demand requires it. 3.6. CMID Channel. Any undergrounding or modification of the CMID channel that lies between the property and the future Barnett Channel shall occur at no cost to Marana Mortuary & Cemetery Properties L.L.C,. This paragraph does not create an affirmative Town obligation to modify or underground the CMID channel. Article 4. Owner/Developer's Payment of Development Impact Fees 4.1. Impact Fees. The Town development impact fees adopted by the Town pursuant to A.R.S. § 9-463.05 and currently applicable to the development of the Cemetery/Mortuary are the Gravity Storage and Renewable Water Resource Fee and the Water System Infrastructure Impact Fee, adopted by Marana Ordinance No. 2005.25 and the Wastewater System Development Impact Fee adopted by Marana Ordinance No. 2008.25. 4.2. Other Impact Fees. Except as specifically provided in Article 3 and paragraph 4.1 above, no surcharge, development fees or impact fees, exactions or impositions of any kind whatsoever for water, sewer, utilities, streets or other transportation systems, parks, preserves, storm sewers, public safety or other public services or any other infrastructure cost or expense shall be chargeable to the Owner/Developer or to any owner, lessee or occupant of the Development unless the use of the Property is altered and then only for a portion of the Property for which the use is changed. Article 5. Cooperation and Alternative Dispute Resolution. 5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the development of the Cemetery/Mortuary, the Town and the Owner/Developer each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Owner/Developer. The initial representative for the Town (the "Town Representative") shall be the General Manager -Development Services, and {00008130.DOC / 6) MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/200811:23 AM -4- the initial representative for the Owner/Developer shall be Jon Aries or a replacement to be selected by the Owner/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. 5.2. Non-Performance; Remedies. If either Party does not perform under this Agreement (the "Non-Performing Party") with respect to any of that Party's obligations under this Agreement, the other Party (the "Demanding Party") shall be entitled to give written notice in the manner prescribed in paragraph 6.28 below to the Non-Performing Party, which notice shall state the nature of the non-performance claimed and make demand that such non-performance be corrected. The Non-Performing Party shall then have (i) twenty days from the date of the notice within which to correct the non-performance if it can reasonably be corrected by the payment of money, or (ii) thirty days from the date of the notice to cure the non-performance if action other than the payment of money is reasonably required, or if the non-monetary non-performance cannot reasonably be cured within thirty days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within thirty days and thereafter diligently prosecuted to completion. If any non-performance is not cured within the applicable time period set forth in this paragraph, then the Demanding Party shall be entitled to begin the mediation and arbitration proceedings set forth in this Article. The Parties agree that due to the size, nature and scope of the development of the Cemetery/Mortuary, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to Owner/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 non-performance of a covenant contained in this Agreement. This paragraph shall not limit any contract or other rights, remedies, or causes of action that either Party may have at law or in equity. 5.3. 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 Owner/Developer and the Town. If the Parties cannot agree upon the selection of a mediator within seven days, then within three days thereafter the Town and the Owner/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 Owner/Developer. The results of the mediation shall be nonbinding ;;;e~C' on the Parties, and any Party shall be free to initiate arbitration after the moratorium. °~~~ r~;; 5.4. Arbitration. After mediation, as provided for in this Article, any dispute, controversy, claim or cause of action arisin out of or relatin to this A reement shall be settled b '~'~~~ g g g Y ~r:~ 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. § 12-501 et ~"~ ~; seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. {00008130.DOC / 6} MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/200811:23 AM -5- Article 6. General Terms and Conditions. 6.1. 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, so long as all obligations of the parties have been performed, on the thirteenth anniversary of the Effective Date. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. 6.2. 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 Owner/Developer of the non-performance 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. 6.3. Attorney's Fees. If any Party brings a lawsuit or arbitration proceeding against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any non-performance 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 or arbitrator and not by the jury. Nothing in the use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 5.4 above, requiring disputes to be resolved by binding arbitration. 6.4. 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 the counterparts and attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 6.5. 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. 6.6. Recitals. The recitals set forth at the beginning of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here by reference. 6.7. 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. 6.8. 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 Cemetery/Mortuary. 6.9. Time Essence. Time is of the essence of each and every obligation by the Town and Owner/Developer under this Agreement. 6.10. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties pursuant to A.R.S. § 9-500.05 (D). No assignment, (00008130.DOC / 6} MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/200811:23 AM -6- however, shall relieve either party of its obligations under this Agreement, except that an assignment by Owner/Developer in connection with the transfer of title to the Property shall relieve Owner/Developer of its obligations under this Agreement if the transferee agrees to be fully bound by the provisions of this Agreement. Any assignment by Owner/Developer shall be subject to the approval of the Town, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Owner/Developer may, without the Town's consent, assign this Agreement to any Affiliate of Owner/Developer, or any entity in which Owner/Developer or an Affiliate of Owner/Developer is a managing member or managing partner or any entity in which 1VIARANA MORTUARY & CEMETERY PROPERTIES, LLC are owners. As used in this paragraph, the term "Affiliate" means any entity under common control with Owner/Developer. 6.11. Lender Provisions. Notwithstanding paragraph 6.10 above, the Town is aware that financing for development, construction, and operation of the Cemetery/Mortuary may be provided, in whole or in part, from time to time, by one or more third parties (collectively, "Lender"), and that Lender may request a collateral assignment of this Agreement as part of its collateral for its loan to Owner/Developer. The Town agrees that such collateral assignments are permissible without the consent of the Town. In the event of non-performance by Owner/Developer, the Town shall provide notice of non-performance to any Lender previously identified in writing to the Town at the same time notice is provided to Owner/Developer. If a Lender is permitted under the terms of its agreement with Owner/Developer to cure the non- performance and/or to assume Owner/Developer's position with respect to this Agreement, the Town agrees to recognize the rights of Lender and to otherwise permit Lender to assume such rights and obligations of Owner/Developer under this Agreement. Nothing contained in this Agreement shall be deemed to prohibit, restrict, or limit in any way the right of a Lender to take title to all or any portion of the Property, pursuant to a foreclosure proceeding, trustee's sale, or deed in lieu of foreclosure. The Town shall, at any time upon request by Owner/Developer or Lender, provide to any Lender an estoppel certificate, acknowledgement of collateral assignment, or other document evidencing that this Agreement is in full force and effect, that it has not been amended or modified (or, if appropriate, specifying the amendment or modification), and that no non-performance by Owner/Developer exists under this Agreement (or, if appropriate, specifying the nature and duration of any existing non-performance) and certifying to such other matters reasonably requested by Owner/Developer or Lender. Upon request by a Lender, the Town will enter into a separate assumption or similar agreement with the Lender consistent with the provisions of this paragraph. 6.12. No Partnership. 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 Owner/Developer and the Town. ~„ 6.13. Third Party Beneficiaries. No term or provision of this Agreement is intended to, or w'=! shall be for the benefit of any person, firm, organization or corporation not a party to this ,^y Agreement, and no such other person, firm, organization or corporation shall have any right or ~C~N cause of action under this Agreement. This Agreement is made and entered into for the sole ;il protection and benefit of the Parties and their permitted assigns, and no person other than the °~. ~~,~ Parties and their permitted assigns shall have any right of action based upon any provision of this ~~,~ Agreement. (00008130.DOC / 6) MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/200811:23 AM -7- 6.14. 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. 6.15. Imposition of Duty b~. This Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. 6.16. Entire Agreement. This Agreement, including the attached exhibits, 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. 6.17. Amendments. 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 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. 6.18. Names and Plans. Subject to customary reservations by the architects and other design professionals of copyrights to plans and specifications, the Owner/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 Owner/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. 6.19. Good Standing; Authority. The Owner/Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of the state of Arizona. The Town represents and warrants to the Owner/Developer that it is an Arizona municipal corporation with authority to enter into this Agreement under applicable state laws. 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. 6.20. Severability. If any provision of this Agreement is declared illegal, invalid or unenforceable, in whole or in part, under present or future laws, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. In lieu of the illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in terms to the illegal, invalid, or unenforceable provisions as ~i may be possible and still be legal, valid, and enforceable, and this Agreement shall be deemed~~~~ reformed accordingly. ~~`~~ `u 6.21. 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 '^~p ~~_, ii ,~:.. take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding ;~: sentence shall constitute a waiver of paragraph 5.4 above, requiring disputes to be resolved by ~,,;1 binding arbitration. `~ {00008130.DOC / 6} MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/200811:23 AM -g- 6.22. Interpretation. This Agreement has been negotiated by the Town and the Owner/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. 6.23. 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 Owner/Developer. 6.24. No Owner/Developer Representations. Nothing contained in this Agreement shall be deemed to obligate the Town or the Owner/Developer to commence or complete any part or all of the development of the Property. 6.25. 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. 6.26. Force Majeure. 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 an event of non-performance under this Agreement so long as such Party shall use its commercially reasonable efforts 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 or subdivision 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 such Party, unfavorable to a Party shall not constitute failure to use its best efforts to remedy such a condition. 6.27. Conflict of Interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 6.28. 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, sent via overnight national courier, 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): °,~~~ ~r.?~ To the Town: Town Manager TOWN OF MARANA ~~"~ ~~:~~ Marana Municipal Complex 1, ~i;n;~ ,~~„ 11555 West Civic Center Drive, A3 Marana, Arizona 85653 ~d,. {00008130.DOC / 6} MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/200811:23 AM -9- To the Owner/Developer: Marana Mortuary & Cemetery Properties, LLC c/o Terramar Properties 2200 EAST RIVER ROAD, SUITE 105 Tucson, AZ 85718 with a copy to: SWAN MANAGEMENT LLC 8261 East Cholla Drive Tucson, AZ 85718 [Remainder of page intentionally left blank.] {00008130.DOC / 6} MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/20081123 AM -10- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: THE TOWN OF MARANA, an Arizona municipal corpo ation Ed onea, Ma or Date: ~ /-~~d ATTEST: oc lyn C. onson, Clerk APPROVED TO FO ~ f'; -- - ~C-z ~ ~,~_ ~~` Fr Cassi~Iy own Attorney STATE OI~ARIZONA County of Pima SS OWNER/DEVELOPER: MARANA MORTUARY & CEMETERY PROPERTIES, L.L.C., an Arizona limited liability company PAHLMEYER. L.L.C., an Arizona limited liability company, it manager By: Robert A. Morken III, its administrative member Date: ~ ~ 0 The foregoing instrument was acknowledged before me on by Robert A. Morken III, administrative member of PAHLMEYER, L.L.C., an Arizona limited liability company, the manager of MARANA MORTUARY & CEMETERY PROPERTIES, L.L.C., an Arizona limited liability company, on behalf of the LLC. My commission expires: .. _ ~ ~ -ai ~.. ~~uC „~,,"r~% ~'+F ~'~iLONA C;a~:;t}} ~;~ E'ima ~fl`/I.ANA RUiZ M Commission Expires April ?_4, 2011 Notary Pu c (00008130.DOC / 6) MARANA CEMETERY DEVELOPMENT AGREEMENT 8/11/200811:23 AM -11- LrsT of Ex~-rrBrTs A. Legal description of the Property B. Conceptual description of the master site plan for the Cemetery/Mortuary {00008130.DOC / 6) 12/18/2007 8:47 PM MARANA CEMETERY DEVELOPMENT AGREEMENT EXHIBIT A EXHIBIT "A" ALL THAT PART OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 28, TOWNSHIP 11 SOUTH, RANGE 1 I EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PIMA COUNTY, ARIZONA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER SECTION CORNER OF SAID SECTION 28; THENCE NORTH 89 DEGREES 50 MINUTES 16 SECONDS EAST, ALONG THE CENTER SECTION LINE, A DISTANCE OF 334.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH OQ DEGREES 03 MINUTES 08 SECONDS WEST, AND PARALLEL WITH THE NORTH CENTER SECTION LINE, A DISTANCE OF 1316.33 FEET TO A POINT; THENCE NORTH 89 DEGREES S2 MINUTES 10 SECONDS EAST, A DISTANCE OF 792.00 FEET TO A POINT; THENCE SOUTH 00 DEGREES 03 MINUTES 08 SECONDS EAST, A DISTANCE OF 1315.89 FEET TO A POINT; THENCE SOUTH 89 DEGREES SO MINUTES 16 SECONDS WEST, A DISTANCE OF 792.00 FEET TU THE TRUE POINT OF BEGINNING; EXCEPT THE SOUTH 2S FEET THEREOF. vNVavw do wNOt ~t ~ Ol O31`IJ103U 38 Ol Lf AWl! 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