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HomeMy WebLinkAboutResolution 2006-084 development agreement for the sonoran preserve on the bajada 'I F. ANN RODRIGUEZ, RECORDER RECORDED BY: C D DEPUTY RECORDER 0224 PE2 , SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 DOCKET: PAGE: NO. OF PAGES: SEQUENCE: 12822 1163 2 20061110313 06/09/2006 15:35 RES MAIL AMOUNT PAID $ 8.00 ~ MARANA RESOLUTION NO. 2006-84 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF A DEVELOPMENT AGREEMENT WITH FIRST AMERICAN TITLE COMPANY, AS TRUSTEE UNDER TRUST 9182, REGARDING THE SONORAN PRESERVE ON THE BAJADA DEVELOPMENT PROJECT. WHEREAS, the Mayor and Council find that the terms and conditions of the Sonoran Preserve on the Bajada 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 Sonoran Preserve on the Bajada development agreement between the Town of Marana and First American Title Company, as Trustee under Trust 9182, 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 FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further 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 OF MARANA, ARIZONA, this 6th day of June, 2006. ~ ~ Mayor E Honea {00002204.DOC /} 1 il'!:li 'rJ~ ~"'~; :::;~; :.;~ WI ::1 l I'.", ;~:il ::~i~ FJClcds 6/1/06 " , Exhibit A to Marana Resolution No. 2006-84, entitled SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT, by and between the Town of Marana and FIRST AMERICAN TITLE INSURANCE CaMP ANY, was recorded separately on June 9,2006, at Docket I :2&9J-, Page ) 1&>5" in . the Office of the Pima County Recorder. :t ""', tll~~, l::~ ~"ai ,"I,,, ~"'IJ 'l!e:" ~!;l! :1. :~: tl, 11, I F. ANN RODRIGUEZ, RECORDER RECORDED BY: C D DEPUTY RECORDER 0224 PE2 SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 DOCKET: PAGE: NO. OF PAGES: SEQUENCE: AG MAIL AMOUNT PAID 12822 1165 14 20061110314 06/09/2006 15:35 $ 12.50 ~ SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA THIS DEVELOPMENT AGREEMENT ("this Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and FIRST AMERICAN TITLE IN- SURANCE COMPANY, an Arizona corporation, as Trustee under Trust 9182 (the "Investor"). The Town and the Investor are collectively referred to in this Agreement as the "Parties," any of which is sometimes individually referred to as a "Party." RECITALS A. The Investor is the owner of approximately 33.6 acres of real property, within the corporate limits of the Town, as depicted on the map attached as Exhibit "A" and legally de- scribed on Exhibit "B" (the "Property"). . B. The Property was annexed into the Town by Ordinance No. 90.26, adopted by the Marana Town Council on July 17, 1990. Ordinance No. 9q.26 adopted Marana Zone C - Large Lot Zone. C. The Property was rezoned to R-8 Residential and VC Village Commercial by Ordi- nance No. 97.06, adopted by the Marana Town Council on March 18, 1997. R-8 Residential zon- ing permits single family residential development on a minimum lot size of 8,000 square feet. VC Village Commercial zoning permits various neighborhood commercial, commercial office and residential uses. Although VC Village Commercial zoning normally allows residential de- velopment on a minimum lot size of 6,000 square feet, Ordinance No. 97.06 requires residential development of the VC Village Commercial portion of the Property to meet the density require- ments of the R-8 Residential zone. D. In November 2003, the Town began proceedings to restrict the permissible distur- bance of natural vegetation in the Tortolita alluvial fan area where the Property is located, to fa- cilitate development in a manner the Town believes is more consistent with existing develop- ment trends and environmental considerations. This proposed change, initially known as the Ba- jada Environmental Resource Overlay District and now referred to as the Tortolita Fan Overlay District ("TFOD"), would, if adopted, have the effect of limiting the Property's development po- tential below what is otherwise allowed by Ordinance No. 97.06. E. On September 9, 2005, the Investor submitted an application for approval of a 29-lot subdivision on the Property as a project called "Sonoran Preserve on the Bajada, Lots 1-29" (the "Project"). F. The Project provides for development with building densities and native vegetation disturbance significantly lower than what is otherwise allowed by Ordinance No. 97.06. G. The Parties prefer to avoid Town-initiated changes that may otherwise affect the Pro- ject, including without limitation TFOD, by reaching agreement concerning the development of the Property as provided in this Agreement. {OOOO 1990.DOC /4} 6/1106 FIe SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 1 - ,'~ lil~'il ~~:: ~::I;~ ~j~: ~~'I' ",l" ~\~ t ,~l ,:'''' 11:::11 w.,' .,:;Ii H. This Agreement is a "Development Agreement" under A.R.S. ~ 9-500.05. I. The following are among the Town's development regulations that now apply to the Property (the "Pre-Existing Regulations"): i) Ordinance No. 97.06. ii) Conditions of approval of the Investor's preliminary plat for the Project. iii) The Marana Development Code (including the written rules, regulations, proce- dures, and other policies relating to development of land, whether adopted by the Mayor and Council or by Town Staff) (collectively the "Marana Development Code"). J. The Investor has owned the Property for many years and has held it for investment and long-term appreciation. The Investor does not intend to develop the Property. The Investor may sell the Property to a builder or developer who will be bound to this Agreement. Whoever actu- ally develops or builds houses or other improvements on the Property, either as a multi-lot de- veloper or single-lot homebuilder or any combination, will be referred to in this Agreement as a "Builder/Developer. " K. The Pre-Existing Regulations notwithstanding, the Investor and the Town desire that the Property be developed in a manner consistent with the Marana Development Code existing on the Effective Date (which shall not include TFOD, either as presently proposed or subse- quently adopted), as amplified and supplemented by this Agreement. The Parties further desire that the development of the Property will generally proceed in accordance with the preliminary plat for the Project. Collectively these governing documents are referred to in this Agreement as the "Development Regulations." L. The Town and the Investor acknowledge that the development of the Property pursu- ant to this Agreement will result in planning and economic benefits to the Town and its residents. M. This Agreement is consistent with the portions ofthe Town's General Plan that apply to the Property. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Agreement, the Parties hereby agree as follows: Article 1. Land Use and Density Limitations. If developed, the Property shall be developed for single family residential use only and limited to no more than 29 homes. Article 2. Environmental Sensitivity and Site Disturbance 2.1. Site disturbance restriction. The Builder/Developer shall disturb no more than 16.8 acres, (50% of the Property) in the aggregate. For purposes of this requirement, disturbed areas shall include any disturbance associated with emergency access, onsite roadways, constructed drainageways, homesites, driveways, landscaping, or any other similar development activity that will occur or has already occurred on the Property. Areas within easements and street rights-of- way where natural vegetation has been fenced and preserved in a manner consistent with para- graph 2.3 below shall be considered undisturbed. Town-approved unsurfaced pedestrian recrea- tional trails within otherwise undisturbed natural open space areas shall not be considered dis- ::1 ~:t~: ~:;;f ":~ ,ot, ""li ,ij~", ~l~ ::1.. ,1 ~::Ii I::::; {OOOOI990.DOC/4} 6/1106 FJC SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 2 - turbed areas for purposes of this requirement. Also excluded for purposes of determining the area of disturbance shall be (i) disturbance associated with offsite improvements to Camino de Oeste or Moore Road, (ii) septic systems subject to reseeding and/or vegetating as practicable, (iii) any coincidental non-paved areas within the private right-of-way which may be disturbed during construction but are reseeded and/or revegetated upon completion of roadway construc- tion, (iv) any slopes associated with roadway construction which upon completion of construc- tion are reseeded and/or revegetated, (v) areas within the public utility easements which are re- seeded or revegetated during final landscaping, and (vi) areas graded for redirection of minor (non-regulatory) flows around building pads which are reseeded or revegetated during final land- scapmg. 2.2. Identification and control of undisturbed areas; covenant. After the Town has ap- proved a final plat subdividing the Property into lots (each, a "Lot"), and before the issuance of any grading permit or other approval that would otherwise allow Builder/Developer to remove vegetation from a Lot, the Builder/Developer shall identify the portions of the Lot anticipated to remain in their undisturbed natural state and shall cause them to be surveyed and legally de- scribed and made subject to a restrictive covenant in the form annexed hereto as Exhibit C. The restrictive covenant shall be recorded in the Pima County Recorder's Office and delivered to the Town prior to issuance of a grading permit for the Lot. As development and development ap- provals occur for the Lot, the specific locations of undisturbed natural areas, and the restrictive covenant containing a survey and legal description associated with the undisturbed natural areas, may be modified with the written reasonable consent of the Town, provided that the Builder/Developer shall at all times remain in compliance with paragraph 2.1 above. 2.3. Protection of undisturbed areas during construction. The Builder/Developer shall in- stall construction fencing to assure that all areas required to remain in their undisturbed natural state are protected during construction. Except as specifically modified by the terms of this Agreement, the Builder/Developer shall comply with all Town grading requirements. 2.4. Permanent maintenance of undisturbed natural areas. With the exception of recrea- tional trails constructed in undisturbed natural areas as provided in paragraph 2.1 above, undis- turbed natural areas set aside as required by this Article shall be permanently maintained in their undisturbed natural state. 2.5. Compliance with state and federal laws and regulations. No approval, permit or au- thorization of the Town authorizes the Investor or the Builder/Developer to violate any applica- ble federal or state laws or regulations, or relieves the Investor or the Builder/Developer from the responsibility to ensure compliance with all applicable federal and state laws and regulations, including but not limited to the Endangered Species Act and Clean Water Act. Article 3. Development Plans. 3.1. Development Review. The Property shall be developed in a manner consistent with the Development Regulations, which together establish the basic land uses, and the densities, in- tensities and development regulations that apply to the land uses authorized for the Property. The Town agrees to issue Builder/Developer-requested permits or approvals for the Property when the Builder/Developer complies with the applicable development review and approval proce- dures and substantive requirements of the Development Regulations. ::!i ';jf::~ :!~f I~~j: ,.1" 1~:11 ::1 :I. 1:::li ".~' .,. {OOOO1990.DOC/4} 6/1106 FJe SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 3 - 3.2. Development Conditions. The Builder/Developer agrees to fulfill all conditions and requirements for the Property outlined in the Development Regulations. 3.3. ArchaeologicallHistoric Resources. Development of the Property shall meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code related to archeological and historic resources. 3.4. Site built construction and building permits. All construction on any portion of the Property, whether sold in bulk or individually, whether subdivided or not, shall be site-built and shall require building permits. Article 4. Infrastructure. 4.1. Dedication of Moore Road Right-of-way. The Investor shall dedicate by the final plat of Sonoran Preserve 45 feet of right-of-way for Moore Road, as depicted on the approved preliminary subdivision plat for Sonoran Preserve on the Bajada, Lots 1 - 29. 4.2. Construction of Moore Road. The parties anticipate that Moore Road will be con- structed by the Tortolita Vistas development project pursuant to the "Tortolita Vistas Develop- ment Agreement" recorded at Docket 12469, Page 3602, Pima County Recorder's Office. If the improvements to Moore Road are not constructed by the time a Builder/Developer applies for building permits to construct the first residence on that portion of the Property described as lots 8-29 as shown on the approved preliminary subdivision plat for the Project, the Builder/Developer shall construct Moore Road according to the completed and approved plans on file with the Town of Marana (Town of Marana Project No. 2002-18) from the east terminus of the existing Moore Road pavement located just east of Butterfly Mountain Drive to a point east of the intersection rounding for the road identified on the preliminary subdivision plat for the Project as "Sonoran Preserve Boulevard" (the total pavement length of which is approxi- mately 640 feet). 4.3. Review fees and development impact fees. Builder/Developer shall pay all duly adopted review fees and development impact fees for development of the Project that may be applicable at the time building permit applications are submitted. Builder/Developer shall be en- titled to a credit as provided in A.R.S. ~ 9-463.05 for dedicated land, constructed improvements or fees paid by Builder/Developer toward public infrastructure or services for which the Town adopts a development impact fee. 4.4. Fire protection. Before a certificate of occupancy is issued for any dwelling unit on the Property, the Builder/Developer shall have completed or shall provide evidence to the Town's satisfaction that Builder/Developer has made a diligent effort to complete the process of having the Property annexed into a fire district. 4.5. Voluntary contribution in lieu of school land dedication. Builder/Developer shall contribute a School Improvement Contribution Fee of $1,200 per residential lot, payable to the Marana Unified School District. The School Improvement Contribution Fee shall be due and payable at the issuance of the building permit for each residential unit. 4.6. Potable Water Service. The Town acknowledges the existence of that certain Water Service Agreement entered into between Lawyer's Title of Arizona, Inc. Trust Nos. 7804-T and 7805- T (Dove Mountain) and the City of Tucson which provides for the service of potable water to the Property, and will not condition approval of subdivision, development plan or building permit applications for the Property upon the use of potable water supplied by the Town. {OOOO1990.DOC/4} 6/1I06FJC SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT -4- J ~:~!: ~:::~ :!"~II ,:~:" t1'~lll JIg:" ~::;II :I l @ l:::I: Article 5. Cooperation and Alternative Dispute Resolution. 5.1. Appointment of Representatives. To further the commitment of the Parties to coop- erate in implementation of this Agreement, the Town and the Investor each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Investor. The initial representative for the Town (the "Town Representative") shall be the Town's Planning Director, and the initial representative for the Investor shall be Jamie Weiss or a replacement to be selected by the Investor. The representatives shall be available at all reason- able times to discuss and review the performance of the Parties to this Agreement and the devel- opment of the Property. 5.2. Timing. The Town acknowledges the need to review promptly all plans and other materials (the "Submitted Materials") submitted by the Builder/Developer under this Agreement or pursuant to any zoning procedure, permit procedure, or other governmental procedure pertain- ing to the development of the Property. The Town agrees to use its best efforts to review the Submitted Materials promptly whenever possible. 5.3. Default: Remedies. If either Party defaults (the "Defaulting Party") with respect to any of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party") shall be entitled to give written notice in the manner prescribed in Article 8 to the De- faulting Party, which notice shall state the nature of the default claimed and make demand that the default be corrected. The Defaulting Party shall then have (i) twenty days from the date of the notice within which to correct the default if it can reasonably be corrected by the payment of money, or (ii) thirty days from the date of the notice to cure the default if action other than the payment of money is reasonably required, or if the non-monetary default cannot reasonably be cured within sixty days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this para- graph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration pro- ceedings set forth in paragraphs 5.4 and 5.5 below. The Parties agree that due to the size, nature and scope of the Property's development contemplated by this Agreement, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to develop- ment and improvement work, once implementation of this Agreement has begun, money dam- ages and remedies at law will likely be inadequate and that specific performance will likely be appropriate for the enforcement of this Agreement. This paragraph shall not limit any other rights, remedies, or causes of action that either party may have at law or in equity. 5.4. Mediation. If there is a dispute under this Agreement which the Parties cannot re- solve 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 me- diation 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 submit- ted to a mediator mutually selected by Investor 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 Investor 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 mediation shall be divided equally between the Town and the Investor. The results of t ,~"'il II~, :~~~~~ "'~I ,~t" ~'~;II 1 ::t i;;:;i; !:JI {OOOO1 990.DOC /4} 6/1106 FJC SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 5 - the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 5.5. Arbitration. After mediation (paragraph 5.4 above) any dispute, controversy, claim or cause of action arising out of or relating to this Agreement shall be settled by submission of the matter by both Parties to binding arbitration in accordance with the Arizona Uniform Arbitration Act, A.R.S. 9 12-501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. Article 6. Assured Development Rights To establish legally protected rights for the development of the Property in a manner con- sistent with the Development Regulations and to ensure reasonable certainty, stability and fair- ness to the Investor and the Town over the term of this Agreement, the Investor and the Town agree that the Development Regulations shall remain in effect and shall not be changed for a pe- riod of seven years after the execution of this Agreement without the agreement of the Investor. Article 7. General Terms and Conditions. 7.1. Manner of Serving. All notices, filings, consents, approvals and other communica- tions provided for in or given in connection with this Agreement shall be validly given, filed, made, transmitted or served if in writing and delivered personally or sent by registered or certi- fied United States mail, postage prepaid, if to (or to such other addresses as either Party from time to time designates in writing and delivers in a like manner): To the Town: Town of Marana Town Manager 11555 West Civic Center Drive Marana, Arizona 85653 To the Investor: First American Title Insurance Company, As Trustee under Trust 9182 6340 N. Campbell Avenue, Suite 278 Tucson, Arizona 85718 Attn: Alexander H. Sears 7.2. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless sooner terminated" by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the Par- ties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. 7.3. 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 Investor of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 1 1I'Ii ,~C,' ~;::~~ :~i;~ '''i' "I,,, ~~JI ~t t i":~111 ~:l;11 {OOOO 1990.DOC / 4} 6/1/06 FJe SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 6 - 7.4. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any breach or default of this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys' fees by the other Party, in an amount determined by the court and not by the jury. 7.5. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts may be removed from such coun- terparts and such signature pages all attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 7.6. Headings and Recitals. The descriptive headings of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provi- sions of this Agreement. The Recitals set forth at the beginning of this Agreement are hereby ac- knowledged, confirmed to be accurate and incorporated here. 7.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been in- corporated 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 of the Property by the Investor and its successors. 7.9. Future effect. 7.9.1. Time essence and successors. Time is ofthe essence ofthis Agreement. All of the provisions of this Agreement shall inure to the benefit of and be binding upon the successors, assigns and legal representative of the Parties, except as provided in para- graph 7.9.2 below. Notwithstanding the foregoing, to the extent permitted by law, the In- vestor's rights under this Agreement may only be assigned by a written instrument and recorded in the Official Records of Pima County, Arizona, expressly assigning such rights, and no obligation of the Investor under this Agreement shall be binding upon any- one owning any right, title or interest in the Property unless that obligation has been spe- cifically assumed in writing or unless otherwise required by law. If Investor assigns all of its rights and obligations under this Agreement, Investor's liability under this Agreement shall terminate effective when those liabilities are assumed by Investor's assignee. 7.9.2. Termination upon sale to public. It is the intention of the Parties that al- though recorded, this Agreement shall not create conditions or exceptions to title or covenants running with the land, unless specifically noted above. Nevertheless, to allevi- ate any concern about the effect of this Agreement on the status of title to any of the Property, this Agreement shall terminate without the execution or recordation of any fur- ther document or instrument as to any lot which has been finally subdivided and indi- vidually (and not in "bulk") leased (for a period of longer than one year) or sold to the end purchaser or user and thereupon that lot shall be released from and no longer be sub- ject to or burdened by the provisions ofthis Agreement. it~i .I :1 1":~iFI 1, {OOOOI990.DOC /4} 6/l/06 FIe SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 7 - 7.10. No partnership: third parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement be- tween the Investor and the Town. No term or provision of this Agreement is intended to, or shall be for the benefit of any person, firm, organization or corporation not a party to this Agreement, and no person, firm, organization or corporation other than the Parties and their successors in interest shall have any right or cause of action under this Agreement. 7.11. Other instruments. Each Party shall, promptly upon the request of the other, have acknowledged and delivered to the other any and all further instruments and assurances reasona- bly request or appropriate to evidence or give effect to the provisions of this Agreement. 7.12. Imposition of duty by law. This Agreement does not relieve any Party of any obli- gation or responsibility imposed upon it by law. 7.13. Entire agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby super- seded and merged in this Agreement. 7.14. 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 pur- sue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in this Agreement. 7.15. Names and plans. The Investor or Builder./Developer (as the case may be) shall be the sole owner of all names, titles, plans, drawings, specifications, ideas, programs, ideas, de- signs, and work products of every nature at any time developed, formulated or prepared by or at the instance of the Investor 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 Agree- ment 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. 7.16. Good standing: authority. The Investor represents and warrants to the Town that it is duly formed and validly existing under the laws of Arizona and is authorized to do business in the state of Arizona. The Town represents and warrants to the Investor that it is an Arizona mu- nicipal 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 au- thorized and empowered to bind the Party on whose behalf each such individual is signing. 7.17. Severability. If any provision of this Agreement is declared void or unenforceable, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. If a law or court order prohibits or excuses the Town from undertaking any con- tractual commitment to perform any act under this Agreement, this Agreement shall remain in full force and effect, but the provision requiring the act shall be deemed to permit the Town to act at its discretion, and if the Town fails to act, the Investor shall be entitled to terminate this Agreement. 7.18. Governing law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the pre- :l. tr~'lt " ~;:;~ ::;t~ ""i' ,II~"' r~~11 ..I" :1.. '''''1'' .I 'i"~i >11;1" {OOOOI990.DOC/4} 6/1/06 FJe SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 8 - ceding sentence shall constitute a waiver of paragraph 5.5, requiring disputes to be resolved by binding arbitration. 7.19. Interpretation. This Agreement has been negotiated by the Town and the Investor, and no Party shall be deemed to have drafted this Agreement for purposes of construing any por- tion of this Agreement for or against any Party. 7.20. Recording. 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 In- vestor. 7.21. No Investor representations. Except as specifically set forth in this Agreement, nothing contained in this Agreement shall be deemed to obligate the Investor to complete any part or all of the development of the Property. 7.22. Approval. A Party shall not unreasonably withhold or delay any approval, consent or permission required to give reasonable effect to this Agreement. 7.23. Force Maieure. If any Party is unable to perform any obligation or condition of this Agreement because of a "force majeure," failure to perform shall not constitute a default under this Agreement so long as the Party uses its best effort to remedy with all reasonable speed the event or condition causing the non-performance and the 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 a 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 of its states 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 em- ployer/employee relations or to settle legal or administrative proceedings when a Party reasona- bly believes the settlement is unfavorable shall not constitute failure to use its best efforts to remedy that condition. [Remainder of page intentionally left blank.] :I, iI~:il :!:: tJ :~;~: :~~~ 1:);11 1 1 ":1" .::~~ {OOOOI990.DOC/4} 6/1/06 FIe SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 9 - 7.24. Conflict of interest. This Agreement is subject to A.R.S. S 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. T~JoregOing jljstrument was acknowledged beforen"le on J\)()e 7, zeo(, by And~ It . \C-eJOH~- , the -tTvS-\- o+t1 G2..r- , of FIRST AMERICAN TITLE INSURANC COMPANY, as ~z~corporation, AS TRUSTEE UNDER TRUST 9182, on behalf of the . ' (HO cOlJlorabon. 4 1 .- OFFICIAL SEAL /' .i /' K. CALLAHAN ' a... / / d ../ [Seal] NOT A"V PUBlIC.ARIZONA V de c .-- . PIMA COUNTY Notary Public Beneficial A p . My Comm. Exp. May 15. 2009 Beneficial Approval: Western Continental Limited Partnership, an Arizona Limited Partnership By: Dordan Israel C ., an Arizona Corporation, its G er Partner TOWN: THE TOWN OF MARANA, an Arizona munici- pal corporation By: -;; f' ~ -' Ed HO~Yor Date: ~- 8 - a, ss County of Pima ) L. V. Properties, an J oint Venture INVESTOR: FIRST AM~~ TgLE INSURANCE COM- PANY ~~ ''c'orporation, As TRUSTEE :E'~8Jr~~di-~'~ [Print Name] ~ltl~ 4_ Pet. che- Title: ~ yf- 'o4ia~ Date: (p -'7 -() (p :t :1: :bi: :::;i! ~ ~~: By: t~lj :t t '7' ,,~;~ Alexander . Seal s Its: President 6/1/06 FJe SONORAN PRESERVE ON THE BAJADA DEVELOPMENT AGREEMENT - 10- EXHmlT "A" Location Map UNSUI3" HIS OJECT UNSUB. Q:::. ~j ~:Q t--::er ~'..::!<o. li:~ Q'-&.... -.J C NORTH SCALE: 3" 1 MILE UN SUB. LOCA TIONM,AP 'I I~~~I ,"I:, :~:l, ""II m!!k II~", ~:~11 "~ " ':~" ~'" ,:::~ EXHIBIT "B" Legal Description Lot 1, a portion of the NW ~ or the NW ~ of Section 31, Township 11 South, Range 13 East, Gila and Salt River Base and Meridian, Town of Marana, Pima County, Arizona. {OOOO2206.DOC /} :,1, It !~ ,~~:: ~",,'i 1'"1I~ ::t: ~;~~~ ~i'il "I :1; I"';r~ ,~" i:::~ EXHIBITC When recorded return to: RESTRICTIVE COVENANT The undersigned (the "Owner") owns Lot of SONORAN PRESERVE ON THE BAJADA, a subdivision of Pima County, Arizona recorded in Book of Maps and Plats commencing at page _ in the Office of the Pima County (Arizona) Recorder. . Reference is made to the Sonoran Preserve on the Bajada Development Agreement dated , 2006, and recorded at Docket _, Page , Pima County Recorder's Office (the "Development Agreement"), between the Town of Marana and First American Title Insurance Company as Trustee under Trust 9182. Words, phrases and defined terms in the Development Agreement will have the same meanings in this Restrictive Covenant unless otherwise specifically defined. In accordance with Article 2 of the Development Agreement, the undisturbed natural areas for Lot _ are legally described in Exhibit 1 annexed hereto (the "Lot Undisturbed Natural Areas"). Owner hereby imposes this Restrictive Covenant on the Lot _ Undisturbed Natural Areas and declares that the Lot _ Undisturbed Natural Areas shall be permanently maintained in an undisturbed natural state as required by the Development Agreement. This Restrictive Covenant is appurtenant to Lot and runs with the land for the benefit of the Town and the Owner. This Restrictive Covenant may be modified or amended only by the Town and may be enforced by the Town pursuant to any remedy available at law or in equity. No failure or delay in enforcing this Restrictive Covenant will constitute a waiver of the right of enforcement. Dated: OWNER: {OOOO2196.DOC /} 1 :1 ,~~;~ ,I:::::~ ll'"~ii ~i~:" d~ l~ll 1 "1 "i; .')~ II 1']111 STATE OF ARIZONA ) ) County of Pima ) This instrument was acknowledged before me this _ day of , 2006, by Notary Public My Commission Expires: {OOOO2196.DOC /} 2 :i W::r ,~,:" '1:::~ ;'J' ,~lj;, ~.tti I~t" 1"11 t ::1. 'Jr' 1:::::1: