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HomeMy WebLinkAboutResolution 2009-160 retail development tax incentive agreement with marana mercantile projectMARANA RESOLUTION N0.2009-160 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO SIGN A RETAIL DEVELOPMENT TAX INCENTIVE AGREEMENT REGARDING THE MARANA MERCANTILE DEVELOPMENT PROJECT WHEREAS A.R.S. § 9-500.11 authorizes the Town to enter into a retail development tax incentive agreement under certain circumstances; and WHEREAS the Mayor and Council find that the proposed tax incentive to be approved by this resolution is anticipated to raise more revenue than the amount of the incentive within the duration of the agreement; and WHEREAS the Mayor and Council find that in the absence of a tax incentive, the Marana Mercantile development project would not locate in the Town of Marana in the same time, place or manner as it is agreeing to do under the terms of the Marana Mercantile Development Agreement; and WHEREAS the Town's finding that the proposed tax incentive is anticipated to raise more revenue than the amount of the incentive within the duration of the Marana Mercantile Development Agreement has been verified by an independent third party; and WHEREAS on August 18, 2009, the Town adopted a notice of intent to enter into the Marana Mercantile Development Agreement, as required by A.R.S. § 9-500.11(K); and WHEREAS the Mayor and Council find the terms and conditions of the Marana Mercantile 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, AS FOLLOWS: SECTION 1. The Marana Mercantile Development Agreement attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized and directed to execute it for and on behalf of the Town of Marana. SECTION 2. The various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this resolution. Marana Resolution No. 2009-160 - 1 - PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 3rd day of November, 2009. i /~~ ~ ayor Ed Honea V ATTEST: celyn C ronson, Town Clerk APPROVED AS TO FORM: r /~ ~/ ' ~ Fr~ik Cassi" ,Town 1, ;~.:. ~9" ~ `,~ ,~a~~~~~~9a~~sac~s~~~.~ `'~ ~~~~~~%®Ne~R~z°~~,~ Marana Resolution No. 2009-160 - 2 - F. ANN RODRIGUEZ, RECORDER DOCKET: RECORDED BY: MRB PAGE: ' ~ DEPUTY RECORDER 1562 PE-1 °g ~I~ W ~ ~ 0~ NO. OF PAGES SEQUENCE sMARA ~ x ~ ' ~ ~'~ TOWN OF MARANA ~ AG ATTN : TOWN CLERK `gIt~011Q' 11555 W CIVIC CENTER DR MAIL MARANA AZ 85653 AMOUNT PAID MARANA MERCANTILE DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA 13680 698 23 20092150202 11/06/2009 14:49 $ 17.00 This Development Agreement (this "Agreement") is entered into by and between the TowN of MARANA, an Arizona municipal corporation (the "Town") and DTD-DEVCO 10, 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. Owner/Developer was formed and exists for the purposes of owning and developing ap- proximately 39.09 acres of real property located within the corporate limits of the Town (the "Property") B. Owner/Developer intends and desires to develop a regional retail shopping center on the Property containing approximately 280,000 square feet (the "Development"). C. The Property and the proposed Development are included in and subject to the provisions of the Marana Mercantile Rezoning (the "Marana Mercantile Rezoning"), approved by the Town concurrently with the date of this Agreement pursuant to Ordinance No. 2009.20. D. The Property is legally described in Exhibit A attached to this Agreement. E. The Town and Owner/Developer desire to establish certain agreements regarding the De- velopment pursuant to A.R.S. § 9-500.05 and certain agreements in connection with develop- ment activities for the economic benefit of the Town pursuant to A.R.S. § 9-500.11 upon and in accordance with the terms and conditions set forth in this Agreement. F. The Development is consistent with the Town's long-term economic development strate- gies and is expected to create a source of significant tax revenue for the Town for many years. G. The Development will have a substantial positive economic impact on the Town because it is expected to provide commercial and retail service opportunities consistent with the busi- nesses targeted by the Town. The facilities to be constructed as part of the Development are ex- pected to produce a significant number of new jobs and generate substantial sales tax revenues. Consequently, the short-term and long-term benefits of the Development will offset and signifi- cantly outweigh the costs of the reimbursements provided by the Town under this Agreement. H. The Development is in compliance with the Town's adopted and approved General Plan (as defined in A.R.S. § 9-461). I. The Town is authorized by A.R.S. § 9-500.05 to enter into a development agreement with a landowner or other person or entity having an interest in real property located within the Town 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. {00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -1- ~°~~ J. In approving this Agreement, the Town Council has found and determined that certain ac- tivities relating to the Development are economic development activities within the meaning of A.R.S. § 9-500.11, that all expenditures by the Town pursuant to this Agreement constitute the appropriation and expenditure of public monies for and in connection with economic develop- ment activities and that it is appropriate to provide Owner/Developer with the reimbursement in this Agreement as an inducement to cause Owner/Developer to construct, own and operate the Development in the Town. K. The Town adopted a notice of intent to enter into this Agreement not less than 14 days be- fore the Town Council approved this Agreement, in compliance with A.R.S. § 9-500.11. L. The Town Council finds that the Development will raise more revenue for the Town than the amount of the reimbursements to the Owner/Developer within the duration of this Agree- ment. M. An independent third party not financed by the Owner/Developer has verified the Town Council's finding that the Development will raise more revenue for the Town than the amount of the reimbursements to the Owner/Developer within the duration of this Agreement. N. The Town Council finds that in the absence of the reimbursements to the Owner/ Developer provided pursuant to this Agreement, the Development would not locate in the Town in the same time, place or manner as it will with the reimbursements to the Owner/Developer. O. The Owner/Developer will incur out-of-pocket public infrastructure construction costs and will make certain contributions for public infrastructure in the immediate vicinity of and di- rectly benefiting the Development. P. The Property is located in an area where the Town has determined that the existing public transportation infrastructure is inadequate, and where the Required Roadway Improvements, as defined in this Agreement, need to be constructed before the Development occurs, but to a large extent would be needed even if the Development does not occur. Q. Because the Required Roadway Improvements would to a large extent be needed whether or not the Development occurs, the Town has determined that full reimbursement of any costs incurred by the Owner/Developer for the construction of the Required Roadway Improvements is both appropriate and necessary. R. The reimbursements to the Owner/Developer provided pursuant to this Agreement are in- tended to reimburse the Owner/Developer for its out-of-pocket construction costs and contribu- tions and related interest and carrying costs for the Required Roadway Improvements, as de- scribed more specifically in this Agreement. AGREEMENT Now, THEREFORE, in consideration of the mutual promises made in this Agreement, the Par- ties agree as follows: Article 1. Background l.l. Incorporation of the Recitals. The foregoing Recitals are incorporated here by this refer- ence. 1.2. Proposed Uses. The Development is a retail center planned to accommodate a range of differing but complementary retail-related land uses on an integrated and master-planned basis. {00014953.DOC / 8} 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -2- Overall, the Development will create substantial additional sales tax revenues for the Town, will assist in the creation or retention of jobs and will otherwise improve or enhance the economic welfare of the residents of the Town by bringing customers to the Development from the Town and surrounding communities. Exhibit B attached to this Agreement is a conceptual depiction of the master site plan for the Development. This master site plan will be updated in accordance with paragraph 2.3.2 below. 1.3. Definitions. The following definitions shall apply to this Agreement: 1.3.1. "Construction Sales Tax Revenues" mean those portions of the Town's transaction privilege taxes (currently 4%) generated pursuant to Section 8-415 or 8-416 of the Marana Tax Code from construction contracting or speculative builder activities occurring on the Property. 1.3.2. The "Development" is defined in recital B above and described in Exhibit B and in paragraph 1.2 above. 1.3.3. "Development Regulations" is defined in paragraph 2.1 below. 1.3.4. "Initial Development Plan" is defined in paragraph 2.3.1 below. 1.3.5. "Initial Minimum Improvements" is defined in paragraph 2.3.1 below. 1.3.6. "Interest" or "Interest Rate" means interest on the applicable obligation or sum (in- cluding the Total Reimbursement Amount) at the following rate per annum, compounded quarterly on the first day of each calendar quarter: 1.3.6.1. Five and a half percent (5.5%) if the Owner/Developer issues a notice to pro- ceed for the construction of the Required Roadway Improvements on or before December 31, 2012. 1.3.6.2. Five percent (5.0%) if the Owner/Developer issues a notice to proceed for the construction of the Required Roadway Improvements after December 31, 2012 but on or before December 31, 2013. 1.3.6.3. Four and a half percent (4.5%) if the Owner/Developer issues a notice to pro- ceed for the construction of the Required Roadway Improvements after December 31, 2013 but on or before December 31, 2014. 1.3.6.4. Four percent (4.0%) if the Owner/Developerissues anotice to proceed for the construction of the Required Roadway Improvements after December 31, 2014. If at any time the construction halts for six consecutive months for any reason other than "force majeure" (paragraph 7.27 below), the Interest Rate shall be decreased one-half percent (0.5%) for each six-month period the delay continues; provided, however, that the Interest Rate shall not be reduced below four percent (4.0%). ~~°° ~u 1.3.7. The "Marana Mercantile Rezoning" is the rezoning for the Property, approved by v~" the Town concurrently with the date of this Agreement pursuant to Ordinance No. 2009.20 (see recital C above), including all conditions and stipulations of rezoning and design guide- lines associated with it. 1.3.8. The "Owner/Developer" is defined in the introductory paragraph of this Agreement and in paragraph 2.6 below. {00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -3- 1.3.9. The "Property" is defined in recital A above and described in Exhibit A attached to this Agreement. 1.3.10. "Reimbursement Account" means a separate account within the Town's General Fund or accounted for by an appropriate book or ledger entry designation for the purpose of making Reimbursement Payments (see paragraph 4.4 below) 1.3.11. "Reimbursement Payments" is defined in paragraph 4.6 below. 1.3.12. "Required Roadway Improvements" means the design and construction of all of the following (subject to modification pursuant to Paragraphs 2.5 and 3.4 of this Agreement): 1.3.12.1. Marana Road as a two-lane curbed roadway with a continuous left-turn lane, sidewalk, and multi-use lanes (and with turn lanes and signalization as required by a Town-approved traffic impact analysis) from (but not including) the Marana Road/ Interstate 10 interchange to the western boundary of the Property. The location, align- ment, and elements of these Marana Road improvements shall be consistent with the north half of the anticipated ultimate six-lane future cross-section of Marana Road, as de- picted in the cross-section depicted in Exhibit C attached to this Agreement. The Marana Road improvements shall also include a transition from the western boundary of the Property to then-existing Marana Road to the west in as short a distance as feasible, as determined by the Town Engineer in the reasonable exercise of good engineering prac- tice. 1.3.12.2. Sandario Road as a two-lane curbed urban collector with a continuous left- turn lane, sidewalks, and multi-use lanes, consistent with the roadway cross-section de- picted in Exhibit D attached to this Agreement, from the new Marana Road improve- ments (paragraph 1.3.12.1 above) to then-existing Sandario Road, in as short a distance as feasible, as determined by the Town Engineer in the reasonable exercise of good engi- neering practice based on a Sandario Road design speed of 35 miles per hour. 1.3.12.3. Marana Main Street as a two-lane curbed urban collector with a continuous left-turn lane, sidewalks, and multi-use lanes, consistent with the roadway cross-section depicted in Exhibit D attached to this Agreement, connecting Marana Road to existing Sandario Road. The length of these Marana Main Street improvements is currently esti- mated to be 0.42 miles, but shall in any event be no more than 0.46 miles, measured along the Marana Main Street centerline. 1.3.12.4. signalization of the Interstate-10 off-ramps at Marana Road, if required by the Town-approved traffic impact analysis. 1.3.12.5. Any additional improvements to the foregoing roadways, to the extent agreed upon in writing by the Owner/Developer and the Town. 1.3.13. "Required Roadway Improvement Costs" means all costs, expenses, fees and charges actually incurred and paid by or on behalf of Owner/Developer to contractors, archi- tects, engineers, surveyors, governmental agencies, other professionals and consultants, and other third parties for materials, labor, planning, design, engineering, surveying, site excava- tion and preparation, governmental permits and payments, payment and performance bonds, other professional services, and .all other costs and expenses related or incidental to and rea- sonably necessary for, the acquisition, improvement, construction, installation, or provision of the Required Roadway Improvements, together with all costs associated with the acquisi- { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -4- tion of lands, rights-of-way and easements either to be dedicated to the Town or upon which Required Roadway Improvements are to be constructed; provided, however, that Required Roadway Improvement Costs shall not include the value of right-of-way dedicated by Own- er/Developer from the Property or any finance or interest costs incurred by Owner/Developer in connection with the design and construction of the Required Roadway Improvements. The term "Required Roadway Improvement Costs" shall also include one-fourth of the costs, ex- penses, 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, sur- veying, 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, instal- lation, or provision of the Shoofly. To the extent that any adjoining property utilizes the Shoofly for public ingress or egress, the Town shall cause that adjoining property owner to reimburse the Owner/Developer for that adjoining property owner's proportionate share, as reasonably determined by the Town or if a private cost-sharing agreement has been recorded between the Owner/Developer and that adjoining property owner to the west, as set forth in such a recorded agreement, of the three-fourths of the Shoofly costs not included in the Re- quired Roadway Improvement Costs. 1.3.14. "Sales Tax Revenues" means that portion of the Town's transaction privilege tax- es (currently 2%) generated from the following activities occurring on the Property: 1.3.14.1. Amusements, exhibitions and similar activities pursuant to Section 8-410 of the Marana Tax Code. 1.3.14.2. Hotels pursuant to Section 8-444 of the Marana Tax Code. 1.3.14.3. Rentals pursuant to Section 8-445 of the Marana Tax Code. 1.3.14.4. Restaurants and bars pursuant to Section 8-455 of the Marana Tax Code. 1.3.14.5. Retail sales pursuant to Section 8-460 of the Marana Tax Code. References to sections of the existing Marana Tax Code shall include corresponding sec- tions of successor codes. 1.3.15. The "Shoofly" is a two-lane curbed roadway with a continuous left-turn lane/ median, consistent with the cross-section depicted in Exhibit E attached to this Agreement, connecting the Interstate-10 Frontage Road and the new Marana Road improvements (para- ,~ graph 1.3.12.1 above) and intersecting Marana Road directly across from Marana Main Street, open to and accessible by the traveling public for so long as the Town Engineer rea- sonably determines it is required for the safe operation of the Marana Road/Interstate-10 traf- fic interchange. The Owner/Developer shall dedicate a public easement to the Town for the Shoofly, reserving cone-foot no-access easement where the west edge of the Shoofly follows the western boundary of the Property. The one-foot no-access easement shall be waived when and to the extent the Town determines that access may be safely granted to an adjoin- ing property owner and provided that the adjoining property owner has paid its proportionate share of the Shoofly costs, as set forth in the last sentence of paragraph 1.3.13 above. The Shoofly public easement dedication shall revert to the Owner/Developer when the Shoofly is no longer open to and accessible by the traveling public as a result of the Town Engineer's { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -5- reasonable determination that the Shoofly is no longer required for the safe operation of the Marana Road/Interstate-10 traffic interchange. 1.3.16. The "Total Reimbursement Amount" is defined in paragraph 4.1 below, and shall not exceed the Required Roadway Improvement Costs, plus Interest. Article 2. Development of the Property. 2.1. Development Regulations. The development of the Property shall be governed by the underlying zoning or land use designation and the standards provided for in the Marana Mercan- tile Rezoning, including the Owner/Developer's design and development standards and guide- lines, as clarified and supplemented by this Agreement. The Marana Development Code, includ- ing 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 the Marana Mercantile Rezoning shall apply to the ex- tent not covered by the Marana Mercantile Rezoning or this Agreement. In the event of any ex- press conflict, the terms of this Agreement and the Marana Mercantile Rezoning shall control over the Marana Development Code. For purposes of this Agreement, the underlying zoning or land use designation shall mean full development, exclusive of voluntary limitations or restric- tions, under the controlling underlying zoning or land use designation included in the Marana Mercantile Rezoning, and if not so covered, under the Marana Development Code. Anything else in this Agreement to the contrary notwithstanding, the Town shall not apply any ordinances enacted after the Effective Date of this Agreement which impose special limitations or restric- tions on the development of single user retail facilities in excess of a certain size limitation (such as 100,000 square feet or more of retail space) for retail facilities on the Property. The imme- diately preceding sentence shall terminate on the tenth anniversary of the Effective Date of 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 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. Upon the Owner/Developer's compliance with the applicable development review and approval procedures and substantive requirements of the Development Regulations, the Town agrees to issue such permits or approvals for the Development as may be requested by the Owner/Developer. 2.3. Initial Development Plan. As a condition precedent to the Owner/Developer's right to receive and the Town's obligation to make Reimbursement Payments under Article 4 of this Agreement, and not as a separate obligation, the Owner/Developer shall prepare and submit to the Town the following: 2.3.1. A development plan (the "Initial Development Plan") for the initial construction of the Development, consisting of at least 100,000 square feet of retail building space and re- lated parking, supporting infrastructure and amenities (the "Initial Minimum Improve- .,,,: ments"). 2.3.2. An updated revised conceptual master site plan for the entire Development. 2.4. Minimum Construction Obli ag tion. As a condition precedent to the Owner/Developer's right to receive and the Town's obligation to make Reimbursement Payments under Article 4 of { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -6- this Agreement, and not as a separate contractual obligation, the Owner/Developer shall obtain building permits for and begin construction of the Initial Minimum Improvements in a manner consistent with the Initial Development Plan. 2.5. Marana Main Street Right-of-Way Acquisition. The Town agrees to timely begin and di- ligently pursue the acquisition of all right-of-way (the "Marana Main ROW") needed for the construction of the Marana Main Street improvements (the "Marana Main Improvements") from Marana Road to Sandario Road (see subparagraph 1.3.12.3 above). If the Town fails to acquire the Marana Main ROW by the time the Owner/Developer begins actual physical construction of the Initial Minimum Improvements, the Marana Main Improvements shall be permanently de- leted from the definition of Required Roadway Improvements, and shall not be required to be constructed by the Owner/Developer; provided, however, that the Owner/Developer shall, at least 180 days prior to actual physical construction of the Initial Minimum Improvements, give the Town written notice of the date Owner/Developer plans to begin actual physical construction of the Initial Minimum Improvements. 2.6. Effect of Sale of a Portion of the Property. The Owner/Developer anticipates that it will sell a portion of the Property to a third party soon after this Agreement is executed, and in any event before the obligations of the Owner/Developer under this Agreement are satisfied. Upon that event: 2.6.1. For purposes of the performance of the Owner/Developer's obligations relating to the Required Roadway Improvements and the Shoofly, the term "Owner/Developer" shall jointly and severally include each and every owner of any portion of the Property. 2.6.2. For purposes of entitlement to receive Reimbursement Payments under Article 4 of this Agreement, the "Owner/Developer" shall mean that owner of any portion of the Property who incurs all or a portion of the Required Roadway Improvement Costs. Article 3. Construction of the Required Roadway Improvements and the Shoofly 3.1. Timing of Construction of Required Roadway Improvements and the Shoofly. Construc- tion of the Required Roadway Improvements and the Shoofly must be substantially complete before the Town issues a certificate of occupancy for any structure on the Property. The Town's right to withhold certificates of occupancy is a contract right granted by this Agreement, and is granted notwithstanding any right of the Owner/Developer or its successors in interest to receive certificates of occupancy pursuant to the Marana building codes. 3.2. Owner/Developer's Public Roadway Improvement Obli atg ions. The Town shall not re- quire the Owner/Developer to construct, provide funding for, or contribute land at no cost for any public roadway improvements other than the Required Roadway Improvements and the Shoofly. 3.3. Required Roadway Improvements Construction and Reimbursement. In satisfaction of the Owner/Developer's public roadway improvement obligations under the Marana Mercantile Rezoning and as a condition precedent to receiving Reimbursement Payments under Article 4 of this Agreement, the Owner/Developer shall, in conjunction with its construction of the Devel- opment and in accordance with the State of Arizona and the Town public infrastructure construc- tion procurement laws and procedures: 3.3.1. Design and construct the Required Roadway Improvements and the Shoofly; and { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT - 7 - 3.3.2. Pay all Required Roadway Improvement Costs as they become due. 3.4. Effect of Prior Construction. The Owner/Developer shall not be required to construct the Required Roadway Improvements and the Shoofly (or the Shoofly's functional equivalent) if they are under construction by the Town or some other entity before the Owner/Developer ob- tains building permits for construction of the Initial Minimum Improvements. However, since the purpose of this Agreement is to facilitate repayment of the Owner/Developer for costs associated with Owner/Developer's construction of the Required Roadway Improvements and the Shoofly, this Agreement shall terminate if and when all of the Required Roadway Improvements and the Shoofly (or the Shoofly's functional equivalent) are completed by anyone other than the Own- er/Developer (see paragraph 7.1 below). If some, but not all, of the Required Roadway Im- provements and the Shoofly (or the Shoofly's functional equivalent) are under construction by the Town or some entity other than the Owner/Developer, the remainder of the Required Road- way Improvements and the Shoofly, as they may be modified pursuant to the next sentence, shall be constructed by the Owner/Developer. In that event, the Town shall be authorized to expand or realign the Required Roadway Improvements and/or the Shoofly to the extent reasonably neces- sary to accommodate additional capacity and alignment considerations directly attributable to the Development, taking into consideration other then-existing development, if any. 3.5. Other Arizona Department of Transportation Requirements. The Arizona Department of Transportation (ADOT) controls and issues permits for all roadway construction, modification, and access affecting Interstate 10 and the Interstate 10 frontage roads. To the extent ADOT access or improvement requirements exceed or are inconsistent with the Required Roadway Im- provements and Shoofly, representatives of the Parties shall meet in good faith to modify this Agreement to address ADOT infrastructure improvement requirements imposed as a condition of issuing an ADOT permit for the Shoofly and for the Required Roadway Improvements affected by the ADOT infrastructure requirements, or for the modification of the Shoofly or the Required Roadway Improvements as necessary to obtain an ADOT permit. Except as addressed in an amendment to this Agreement, the Town shall not be responsible to pay for the cost of new or modified roadway infrastructure required by ADOT permit and resulting from construction of the Development. 3.6. Town Review and Approval of Plans. Except as expressly provided in this Agreement, the development and construction of the Required Roadway Improvements is subject to the Town's normal plan submittal, review and approval procedures and construction inspection re- quirements. Article 4. Town Reimbursement to Owner/Developer '~ 4.1. Total Reimbursement Amount. The Town shall make Reimbursement Payments to the Owner/Developer for the Owner/Developer's Required Roadway Improvement Costs plus Inter- est (collectively, the "Total Reimbursement Amount"). ~~- 4.2. Accrual of Interest. From and after the commencement of construction of the Required Roadway Improvements, Interest shall accrue on any unreimbursed portion of the Total Reim- bursement Amount at the Interest Rate. If a period of two years lapses between the commence- ment of construction of the Required Roadway Improvements and the Town's first reimburse- ment payment to the Owner/Developer pursuant to paragraph 4.6 below, Interest shall be tolled and shall not accrue from the first day after the two-year period until the date of the Town's first reimbursement payment to the Owner/Developer pursuant to paragraph 4.6 below, when it shall {00014953.DOC / 8} 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -g- again begin accruing on any then-remaining unreimbursed portion of the Total Reimbursement Amount. Accrued Interest on the Total Reimbursement Amount shall be a portion of the Reim- bursement Payments in paragraph 4.6 below. 4.3. Owner/Developer's Quarterly Statement of Costs. The Owner/Developer shall submit to the Town a quarterly statement showing the actual construction costs incurred and contributions paid to date for the Required Roadway Improvements. The Owner/Developer shall provide the Town with invoices or other backup information reasonably requested by the Town to confirm the accuracy of the Owner/Developer's quarterly statement of costs and contributions. 4.4. Reimbursement Account. The Town shall deposit into the Reimbursement Account 45% of the Sales Tax Revenues (see paragraph 1.3.14 above) and 75°Io of the Construction Sales Tax Revenues (see paragraph 1.3.1 above) as they are received from the Arizona Department of Rev- enue, beginning with the first such revenues generated from the Property and ending upon the earlier of the following: 4.4.1. The expiration of this Agreement. 4.4.2. When the Town has fully reimbursed the Owner/Developer for the Required Roadway Improvement Costs. Funds in the Reimbursement Account shall be reimbursed to the Owner/Developer pursuant to paragraph 4.6 below. 4.5. Reimbursement from Other Sources If the Town receives any reimbursement (indivi- dually or collectively, a "Third Party Reimbursement") for any portion of the Required Roadway Improvement Costs from any third party (by way of example, from any improvement district, capital improvement project, any other benefitted landowner, etc.), then the Town shall imme- diately deposit such Third Party Reimbursement into the Reimbursement Account for distribu- tion to Owner/Developer in accordance with the provisions of paragraph 4.6 below. 4.6. Reimbursement Pa.~. The Town shall pay to the Owner/Developer within the first 45 days of each calendar quarter all funds in the Reimbursement Account ("Reimbursement Payments"), beginning the first calendar quarter after the later of (i) Town's issuance of the cer- tificate of occupancy for any combination of buildings that are constructed as part of and satisfy the requirement for the Initial Minimum Improvements as shown on the Initial Development Plan (see paragraph 2.3.1 above) or (ii) the Owner/Developer's satisfaction of all conditions precedent to receiving Reimbursement Payments as set forth in this Agreement. Any funds ac- crued in the Reimbursement Account but not yet disbursed to the Owner/Developer upon the ex- piration of this Agreement shall be paid to Owner/Developer within thirty days after the expira- tion of this Agreement. Reimbursement Payments shall be deemed to be made first on account of accrued and unpaid Interest and then on account of unreimbursed Required Roadway Improve- ment Costs. 4.7. Owner/Developer Audit. Not more than once each calendar year, the Owner/Developer may, at its own cost, audit Town sales tax returns and other appropriate financial records of the Town to assure prompt and accurate deposit into the Reimbursement Account of all revenues as required pursuant to this Agreement. 4.8. Annual Report. Within 45 days following the end of each Town fiscal year, the Town shall deliver to the Owner/Developer areport of all Sales Tax Revenues generated by or attribut- { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -9- able to the Development which have been utilized by the Town in determining the amount depo- sited into the Reimbursement Account. 4.9. Limitations. During the Term of this Agreement, the Town shall not enter into any agreement or transaction which impairs the rights of Owner/Developer under this Agreement, including, without limitation, the right to receive the Reimbursement Payments and the proceeds of the Reimbursement Account in accordance with the procedures established in this Agreement. 4.10. Multiple Business Locations and Contractors; Release of Tax Information. Since con- tractors report their transaction privilege taxes on the basis of revenues for all construction work throughout the Town and since some businesses with multiple locations in the Town report their transaction privilege taxes on the basis of revenues for all their locations in the Town, rather than separately for each location, Owner/Developer shall require each such contractor to separately report transaction privilege taxes for construction activities occurring on the Property and shall require each such business to separately report transaction privilege taxes for transactions at its business located in the Development. The Owner/Developer shall exercise reasonable efforts to obtain from each such contractor and business a consent to release of tax information in a form reasonably acceptable to the Town. If the separate report required by this paragraph is not pro- vided to the Town, the Town shall make a reasonable estimate of the Sales Tax Revenues de- rived from the Development based on all information available to the Town, including informa- tion provided by the Owner/Developer, and the good faith certification by the Town's Finance Director shall be considered final and binding upon the Owner/Developer. The final certification of the Town's Finance Director shall be subject to all applicable laws that may prohibit or limit the dissemination or use of transaction privilege tax and related information. Article 5. Owner/Developer's Payment of Development Impact Fees 5.1. Water Impact Fees. The only Town development impact fees adopted by the Town pur- suant to A.R.S. § 9-463.05 and currently applicable to the Development are the Gravity Storage and Renewable Water Resource Fee and the Water System Infrastructure Impact Fee, adopted by Marana Ordinance No. 2005.25. 5.2. Other Impact Fees. Except as specifically provided in the first sentence of paragraph 5.1 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, flood control, 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 within the first 42 months after the Effective Date of this Agreement. 3~ Article 6. Cooperation and Alternative Dispute Resolution. 6.1. Appointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the Development, the Town and the 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 Planning Director, and the initial representative for the Owner/Developer shall be Gary Elbo- gen or a replacement to be selected by the Owner/Developer. The representatives shall be availa- ble at all reasonable times to discuss and review the performance of the Parties to this Agreement and the development of the Property. { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -10- 6.2. 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 7.29 below to the Non-Performing Party, which notice shall state the na- ture 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 rea- sonably be cured within thirty days, then such longer period as may be reasonably required, pro- vided 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, 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 con- tract or other rights, remedies, or causes of action that either Party may have at law or in equity. 6.3. 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 arbitra- tion 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 media- tion 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 develop- ment. The cost of any such mediation shall be divided equally between the Town and the Own- er/Developer. The results of the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 6.4. Arbitration. After mediation, as provided for in this Article, any dispute, controversy, claim or cause of action arising out of or relating to this Agreement shall be settled by submis- sion of the matter by both Parties to binding arbitration in accordance with the rules of the Amer- ican 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 ju- risdiction. Article 7. General Terms and Conditions. 7.1. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the earliest of the following: (a) when construction of all of { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -11- the Required Roadway Improvements is completed by an entity other than the Owner/Developer (see paragraph 3.4 above), (b) when the total amount of all Reimbursement Payments (see para- graph 4.6 above) equals the Required Roadway Improvement Costs plus Interest or (c) on De- cember 31 immediately following the twentieth anniversary of the Effective Date. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. 7.2. 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. 7.3. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any 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 and not by the jury. Nothing in the use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 6.4 above, requiring disputes to be resolved by binding arbitration. 7.4. 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 coun- terparts and attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 7.5. 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. 7.6. Recitals. The recitals set forth at the beginning of this Agreement are hereby acknowl- edged, confirmed to be accurate and incorporated here by reference. 7.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorpo- rated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. 7.8. 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 revi- sions, and other necessary approvals relating to the Development. 7.9. Time Essence. Time is of the essence of each and every obligation by the Town and Owner/Developer under this Agreement. 7.10. 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). Own- ' er/Developer shall retain the right to receive Reimbursement Payments as provided by para- ~„ graph 4.6 of this Agreement regardless of the status of title or ownership of any or all of the Property unless Owner/Developer expressly assigns its rights to receive the Reimbursement Payments. No assignment, 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 { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -12- 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, wholly or partially assign this Agreement to: (a) any Affiliate of Owner/Developer, or any entity in which Owner/Developer or an Affiliate of Owner/Developer is amanaging member or managing partner or (b) any entity in which DTR1, L.L.C. or DESERT TROON, LIMITED, L.L.C. are owners; or (c) any entity which owns a parcel in the Project containing a building of at least 50,000 square feet. As used in this paragraph, the term "Affiliate" means any entity under com- mon control with Owner/Developer. After assignment of rights as provided in this paragraph, the assignee shall receive the right to Reimbursement Payments under Article 4 of this Agreement to the extent of the assignment. 7.11. No Title Encumbrance. Notwithstanding the fact that this Agreement is being recorded in the Official Records of Pima County, it is intended that this Agreement shall not be an encum- brance upon the title of any person or entity purchasing or owning a portion of the Property, and that the terms and conditions of the Agreement are not covenants running with the land and that no person or entity is bound by (or entitled to) the burdens and benefits of this Agreement unless the burdens are expressly assumed by or the benefits are expressly assigned to that person or ent- ity. 7.12. Lender Provisions. Notwithstanding paragraph 7.10 above, the Town is aware that fi- nancing for development, construction, and operation of the Development 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 Own- er/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 Own- er/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 as- sumption or similar agreement with the Lender consistent with the provisions of this paragraph. 7.13. No Partnership. It is not intended by this Agreement to, and nothing contained in this ~;ti Agreement shall, create any partnership, joint venture or other arrangement between the Own- er/Developer and the Town. 7.14. Third Party Beneficiaries. No term or provision of this Agreement is intended to, or shall be for the benefit of any person, firm, organization or corporation not a party to this {00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -13- Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement. Except as provided in paragraph 7.12 of this Agreement, this Agreement is made and entered into for the sole 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. 7.15. Other Instruments. Each Party shall, promptly upon the request of the other, have ac- knowledged 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. 7.16. Imposition of Dut~.~. This Agreement does not relieve any Party of any obliga- tion or responsibility imposed upon it by law. 7.17. Entire Agreement. This Agreement, including the attached exhibits, constitutes the en- tire 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 writ- ten, are hereby superseded and merged in this Agreement. 7.18. Amendments. No change or addition shall be made to this Agreement except by a writ- ten 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 ex- pressed in the final plats or development plans governing the Property and Marana Mercantile Rezoning as amended and superseded by this Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense of the Party requesting the amendment. 7.19. 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 in- stance 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 as- signed to the extent that such rights are assignable, to the appropriate governmental authority. 7.20. Good Standing; AuthoritX. 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 and is authorized to do business in the state of Arizona. The Town represents and warrants to the Own- er/Developer that it is an Arizona municipal corporation with authority to enter into this Agree- °a ment under applicable state laws. Each Party represents and warrants that the individual execut- ing this Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 7.21. Severability. If any provision of this Agreement is declared illegal, invalid or unenfor- ceable, 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, ;1 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 maybe poss- ible and still be legal, valid, and enforceable, and this Agreement shall be deemed reformed ac- cordingly. Without limiting the generality of the foregoing, if all or any portion of the payments { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -14- required by the terms of this Agreement are determined, by a court of competent jurisdiction in a final non-appealable judgment, to be contrary to public policy or otherwise precluded, the parties shall utilize their reasonable, best efforts to promptly restructure and/or amend this Agreement, or to enter into a new agreement to afford the Owner/Developer the economic benefits of this Agreement in light of the benefits to the Town. 7.22. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 6.4 above, requiring disputes to be resolved by binding arbitration. 7.23. Interpretation. This Agreement has been negotiated by the Town and the Own- er/Developer, and no Party shall be deemed to have drafted this Agreement for purposes of con- struing any portion of this Agreement for or against any Party. 7.24. 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. 7.25. 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. 7.26. 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. 7.27. Force Majeure. If any Party shall be unable to observe or perform any covenant or con- dition 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 Agree- ment so long as such Party shall use its commercially reasonable efforts to remedy with all rea- sonable 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 mili- tary authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earth- quakes; 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. ~~ 7.28. 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. 7.29. 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, { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -15- 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 ad- dresses as any Party may from time to time designate in writing and deliver in a like manner): To the Town: Town Manager Town of Marana Marana Municipal Complex 11555 West Civic Center Drive, A3 Marana, Arizona 85653 To Owner/Developer: DTD-Devco 10, L.L.C. C/O DESERT TROON COMPANIES. 17207 N. Perimeter Drive, Suite 200 Scottsdale, Arizona 85255 Attn: Legal Department Wlth a Copy t0: CHESTER & SHEILA, P.C. 8777 North Gainey Center Drive, Suite 191 Scottsdale, Arizona 85258 Attn: David Shein, Esq. [Remainder of page intentionally left blank.] ;wt { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT -16- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their representatives' respective signatures. TOWN: THE TOWN OF MARANA, an Arizona municipal corporation ,,G Ed Honea, ayor Date: l~` 3 - ~ / ATTEST: ~L~1~Ci elyn C ronson, Clerk APPROVED AS TO FORM: nk Ca`~ idy, Town A rney r' ~.; STATE OF ARIZONA Ss County of Maricopa ) OWNER/DEVELOPER: DTD-DEVCO 10, L.L.C., an Arizona limited liability company By: DTR1, L.L.C., an Arizona limited liability company, Manager B ~" I Y• Gary S. Elbogen, Authorized Agent Date: 11 ~~' 6 ~ The foregoing instrument was acknowledged before me on-6etebE~ ~ , 2009, by Gary S. Elbogen, the Authorized Agent of DTR1, L.L.C., an Arizona limited liability company, Manager of DTD-DEVCO 10, L.L.C., an Arizona limited liability c mpany, on behalf of the company. My commission expires: ~ ' 3 ~ " l3 Notary Public t1E111pIE C l~6E1 Expires 01131/2013 { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT - 17- ~~~1 '' ~~~„~, LIST OF EXHIBITS A. Legal description of the Property B. Conceptual description of the master site plan for the Development C. Typical cross-section for the Marana Road improvements D. Typical cross-section for Sandario Road connection and Marana Main Street (standard cross-section for atwo-lane urban collector with a continuous left-turn lane) E. Typical cross-section for the Shoofly ~, ~~~ g Ih~ { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT Exxmrr LisT -18- EXHIBIT A Legal description of the Property PARCEL ONE That portion of the East half of the Northeast quarter Section 21 Town-ship 11 South Range 11 East, Gila and Salt River Base and Meridian, Pima County, Arizona, described as follows, to wit: Commencing at a point on the east line of said Section, distant 1744 feet southerly from the corner common to Sections 15, 16, 21 and 22, in said Township and Range; Thence North 49° 36 'West 403.00 feet to a point; Thence West 93 feet to a point; Thence South 668 feet to a point; Thence East 400 feet to the east line of said Section 21; Thence Northerly along the east line of said Section 21, a distance of 407 feet to the place of beginning. EXCEPTIlVG THEREFROM that portion lying within boundaries of the Interstate 10 (also known as the Tucson-Casa Grande Highway, also known as the Tucson-Picacho Highway), as it now exists, shown on those certain A.D.O.T. plans dated September 6, 1960, Project No. I-10-4 (26) 231 and in Pima County, Project F.L94 according to the map thereof filed for record in the office of the County Recorder of Pima County, Arizona on June 6, 1950, Instrument #17973. PARCEL TWO That portion of the Northeast quarter of Section 21 Township 11 South Range 11 East, Gila and Salt River Base and Meridian, Pima County, Arizona described as follows: All of the East 847 feet of the East half of the Northeast quarter of Section 21 lying South of the Southwest right of way line Interstate 10 (also known as Tucson-Casa Grande Highway, also known as the Tucson-Picacho High- way), as it now exists, shown on those certain A.D.O.T. plans dated September 6, 1960, Project I-10-4 (26) 231 and in Pima County, Project F.I. 94 according to the map thereof filed for record in the office of the County Recorder in Pima County, Arizona on June 6, 1950, Instrument #17973. EXCEPTIlVG THE- REFROM that portion lying within Trico Marana Road as estabilished as Road No. 144 on December 6, 1926, by the Pima County Board of Supervisors. FURTHER EXCEPTING THEREFROM that parcel conveyed to Western Cotton Oil Co. By Deed dated November 10, 1950 and recorded November 16, 1950 in Docket 300 at page 540; FURTHER EXCEPTING THEREFROM that portion conveyed to the State of Arizona by and through its Department of Transportation by Warranty Deed dated De-cember 8, 1992 recorded Mayl 1, 1993 in Docket 9539 at page 369. PARCEL THREE The West 533 feet of the East 1380 feet of that portion of the North-east quarter of Section 21 Township 11 South Range 11 East, Gila and Salt River Base and Meridian, Pima County, Ari- zona, lying South of the southwesterly right of way line on Interstate 10 (also known as the Tucson-Casa Grande Highway, also known as the Tucson-Picacho Highway) as it now exists, shown in those certain A.D.O.T. plans dated September 6, 1960, Project No.I-10-4 (26) 231 and in Pima County, Project F.I. 94 ac-cording to the map thereof filed for record in the office of the County Recorder of Pima County, Ari- zona on June 6, 1950, Instrument #17973 EXCEPTING THEREFROM that portion lying within Trico Marana Road as established as Road No. 144 on December 6, 1926 by the Pima County Board Supervi- sors. PARCEL FOUR That part of the West 300 feet of the East 1680 feet of the Northeast quarter of Section ~~ 21 Township 11 South Range 11 East, Gila and Salt River Base and Meridian, Pima County, Arizona ly- ing South and West of the southwesterly right of way line of Interstate 10 (also known as the Tucson- Casa Grande Highway, also known as the Tucson-Picacho Highway) as it now exists, shown on those certain A.D.O.T. plans dated September 6, 1960, Project No. I-10-4 (26) 231 and in Pima County Project ~:.,. F.I. 94 according to the map thereof filed for record in the office of the County Recorder in Pi-ma County, 9i~' Arizona on June 6, 1950, Instrument #17973 EXCEPTING THEREFROM that portion lying within Trico `~~~ Marana as established as Road No. 144 on December 6, 1926 by the Pima County Board of Supervisors. { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT EXHIBIT A EXHIBIT B Conceptual depiction of the master site plan for the Development ~.~m__ ,' ;~ z3 #~ 3i p~ ~r { 00014953.DOC / 8 } 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT Exx~rr B EXHIBIT C Typical cross-section for the Marana Road improvements ~ FlTL1RE MM1RANAROAf7. {00014953.DOC / 8; 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT EXHIBIT C ExxisIT D Typical cross-section for Sandario Road connection and Marana Main Street (standard cross-section for atwo-lane urban collector with a continuous left-turn lane) ~I" {00014953.DOC / 8} 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT EXHIBIT D so' R/w _ ~ r MINIMUM R/w R/w I ExxIBIT E Typical cross-section for the Shoofly 1.50' TYPE 'A' CURB AND GUTTER 37.00` FROM BACK OF CURB TOBACK OFCURB 11:25 DRIVING LANE 11.50' TURNING LANE /MEDIAN 11,25' DRIVING LANE 4"-SINGLE YELLOW 4'-SINGLE WHITE SOLID LINE 4'-SINGLE WHI SOLID LINE 4"-SINGLE YELLOW SOLID CIN DASHED LINE. ` t:50` TYPE."G" CURB AND GUTTER AS PER PC-COT 200 {00014953.DOC / 8} 10/6/2009 8:50 AM MARANA MERCANTILE DEVELOPMENT AGREEMENT ExxIBIT E