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HomeMy WebLinkAboutResolution 97-083 amendment to restated development agreement and IGA and amend pre-annexation for ruelas canyon and bajada within red hawk specific planF. ANN RODRISUE~ RECORDER RECORDED ~y: GIM DEPUTY R~CQRDE~ ROOA ~MARA TOWN OF MARANA ATTN: TOWN CLERK 13251N LON ADAMS RD MARANA AE 85653 DOCKET: 10626 PAGE: 618 NO. OF PAGES: 2 SEQUENCE: 97145326 09/09/9? RES 13:42:00 MAIL AMOUNT PAID $ S.00 MARANA RESOLUTION NO. 97-83 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING THE THIRD AMENDMENT TO THE AMENDED AND RESTATED DEVELOPMENT AGRF-g. MENT AND INTERGOVERNMENTAL AGREEMENT (DISTRICT 2) AND AMENDMENTS TO THE PRE-ANNEXATION DEVELOPMENT AGREEMENTS FOR RUELAS CANYON AND BAJADA LOCATED WITH/N THE REDHAWK SPECIFIC PLAN. WHEREAS, on January 17, 1995 the Town of Marana did, b~ Resolution No. 95-04, enter into an "Amended and Restated Development Agreement and Intergovernmental Agreement" with WCA Communities Inc. and U.S. Homes Corporation, for the development of certain portions of RedHawk Canyon, and on May 7, 1996, by Resolution No. 96-43, enter into a "Second Amended and Restated Development Agreement"; and WHEREAS, the Town has also entered into Pre-Annexation Development Agreements with Ruelas Canyon Property and Bajada Property located within the RedHawk Specific Plan area; and WHEREAS, it has been determined that amendments should be adopted to the above stated development agreements which would require the preparation of a traffic impact study, called the "Sub-Regional Transportation Study" for all development occurring within the RedHawk Specific Plan area, and require the developers of the above stated areas to comply with the findings of the Sub-Regional Transportation Study regarding roadway and related improvements, and further would control distribution of sales tax proceeds generated by resorts located within the Specific Plan, and it would be in the best interests of the citizens of the Town that such traffic impact study be required. NOW, THEREFORE, be k resolved by the Mayor and Council of the town of Marana, Arizona, that the Third Amendment to the Amended and Restated Development Agreement and Intergovernmental Agreement (District 2), the Amendment to the Pre-Annexation Development Agreements for Ruelas Canyon, and the Amendment to the Pre-Annexation Development Agreement for Bajada, attached hereto as Exhibits A, B, and C, is approved and the Mayor and Clerk are authorized and directed to execute and deliver the Development Agreements on behalf of the Municipality as provided herein. M~w~n~, Arizona R~ol~tio~ No. 97-83 Page 1 of 2 10626 618 PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 15th day of August, 1997. Daniol J. Hochuli Town Attomey Mararia, Arizon~ Re~olutlon No. 97-83 Page 2 of 2 : SMARA ,TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 ---)OCKET: PAGE: NO. OF PAGES: SEG!UENCE: F. ANN FWDR I GUE:-- RECORDER HECORDED BY: G It,. DEPUTY RECORDER C:.:7r:~ 1, ROOA AAG 10626 620 8 971, l+5327 09/09/97 13: t+2 : 00 MAIL AMOUNT PAID $ 9.50 THIRD AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT AND INTERGOVERNMENTAL AGREEMENT (Amending Document Recorded in Docket 9969 at Page 1923) (District 2 Property) This Amendment (the "Amendment") is made as of /ll/GI/S T IS , 1997 by and among the Town of Marana, an Arizona municipal corporation (the "Town"), Lawyers Title of Arizona, Inc., an Arizona corporation, as Trustee under Trust No. 7804-T ("Trust 7804") and Lawyers Title of Arizona, an Arizona corporation, as Trustee under Trust No. 7805-T ("Trust 7805") . RECITALS: A. The Town and the predecessor in title of Trust 7804 and Trust 7805 have executed an Amended and Restated Development Agreement and Inter-Governmental Agreement recorded in Docket 9969 at Page 1923 in the office of the Pima County Recorder (as amended by a First Amendment and Second Amendment) relating to the District 2 property described therein which is adjacent to the Property (the Agreement") . B. Trust 7804 and Trust 7805 are the current owners of the Property described in the Agreement and are the assignees of the Developer's rights and obligations under the Agreement pursuant to the Assignment and Assumption of Ancillary Contracts recorded in Docket 10437 at Page 1728 in the Office of the Pima County Recorder. C. The parties hereto desire to amend and restate portions of the Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto state, confirm and agree as follows: Exhibit A to Marana Resolution No. 97-83 '0625 620 AGREEMENT 1. Improvements. Paragraph 6.9 of the Agreement is hereby amended in its entirety as follows: The parties hereto recognize and acknowledge that the development of the Property and the resulting augmentation of residential, commercial and/or recreational activities upon and about the Property which directly benefit the Town will increase the traffic flow upon certain offsite arterial roadways. These offsite roadways will be identified in a Subregional Transportation Study that will be prepared by the Town of Marana ("Subregional Transportation Study"). The Developer shall contribute $15,420.00 toward the Subregional Transportation Study which shall be paid to the Town of Marana prior to town staff approval of the first residential subdivision final plat or commercial/ industrial development plan or subdivision final plat, excluding any golf course and resort hotel. The parties hereto further acknowledge that such development shall increase the need for construction of certain roadways to be designated on the Subregional Transportation Study, along with related improvements. The parties hereto also recognize and acknowledge that the Town does not have the current financial capacity to construct the necessary public roadway improvements to be identified in the Subregional Transportation Study. Accordingly, the Developer intends (but is not required) to construct in phases all or a part of the public roadways and related improvements to be described in the Subregional Transportation Study from time to time (and such other roadway improvements as are mutually approved by the Town and the Developer) and to dedicate same for the use and benefit of the residents of the Town and the public at large. Because of the benefit to the public health, welfare and safety if such public improvements are constructed and because of the increase in the Town's revenues which will result from sources located upon or about the Property, the Town will establish a funding mechanism and shall reimburse the Developer (or its assignee) in full upon request of the Developer (or its assignee) for all actual out of pocket costs and expenses incurred in the construction of such public improvements described in the Subregional Transportation Study 2 \0626 62' subject, however, to the conditions and limitations set forth below: A. The Town shall not be required to reimburse the Developer or its assignees for any portion of such public improvements paid for by Developer or its assignees unless a luxury resort hotel (and/or time share resort facility) of no less than 120 rooms with related recreational facilities has been completed and is operating prior to the reimbursement either on the Property or on any other property located within the RedHawk Specific Plan, as amended. B. The reimbursement funding mechanism and source of funds shall not be designated at this time but the funds may be derived from one or more of the following sources: 1. A Municipal Property Corporation; 2. Sales Taxes; 3. Highway Users Funds; 4. Local Transportation assistant funds; and 5. Other development related funds. C. At the time of any requests for reimbursement hereunder, the Town shall not be required to reimburse the Developer or its assignees for any amount in excess of one-half (1/2) of the cumulative amount of all transaction privilege taxes and sales taxes previously received by the Town from (i) room charge, food and beverage and retail sales at any hotel facilities (and/or time share resort facility) described in subparagraph A above, and (ii) golf charges, food and beverage and retail sales at any golf course and related facilities on the Property or on any other property located within the RedHawk Specific Plan, as amended, with respect to which any such hotel facilities have a tee time or reservation agreement. The Developer or its assignees shall submit requests for reimbursements for public improvements paid for by the Developer or its assignees in the prior fiscal year once per fiscal year no later than April 1, and shall be paid in 3 10626 622 the next fiscal year (or such later time as the transaction privilege taxes or sales taxes described above are received by the Town) The Town shall not be required to pay for any reimbursement requests not made within one (1) year of payment for the public improvements by the Developer or its assignees. Notwithstanding the reimbursement obligations contained in both the prior Pre-Annexation Agreements and in this Amendment, the Town shall not be required to provide reimbursements to Developer or its assignees in excess of the amount equal to one-half of the cumulative transaction privilege or sales taxes described above ~ the cost of any traffic related improvements funded or constructed by the Town which were identified in the Subregional Transportation Study. The Town acknowledges and agrees that one-half (1/2) of the transaction privilege or sales taxes described above shall be utilized for traffic related improvements identified in the Subregional Transportation Study, whether such traffic related improvements are constructed by the Town or constructed by (and reimbursed to) the Developer or its assignees. D. The reimbursement amount shall be based upon an engineer's certification of the improvements made by the Developer or its assignees. The engineer shall be mutually approved by the Developer or its assignees and the Town and approval shall not be unreasonably withheld. E. No outstanding construction reimbursement shall exceed the balance of the unreimbursed cost of the improvements. F. The reimbursement provisions contained herein shall not be applicable to public improvements constructed by the Developer or any of its assignees on the property contained within the RedHawk Specific Plan, as amended. G. The Town shall not be required to pay any further reimbursements from and after December 31, 2011 irrespective of whether or not the Developer or its assignees has by then been reimbursed in 4 10626 623 full for the improvements. construction of the public H. The Town shall not be required to reimburse the Developer (or its assignee) for any portion of such public improvements not located within the town limits of the Town at the time such improvements are constructed. I. The Town acknowledges that the construction of the public roadway improvements to be described in the Subregional Transportation Study and other public roadway improvements to provide access to and through the Property are necessary for the development of the Property, will promote health, safety and welfare of the residents of the Town, and might require condemnation by the Town of certain real property to acquire right-of- way for access or improvements for the roadway improvements to the Property. Recognizing the Town's interest in the construction of the public roadways and the future development of the Property, it is determined to be in the public interest and the Town agrees to initiate and diligently pursue condemnation of any real property necessary for the construction of the roadway improvements; provided, however, that the Developer shall pay all costs, expenses, judgment and award of such condemnation. The Town and the Developer shall cooperate in the preparation for, and preparation of evidence in, the condemnation proceedings, and in the selection of legal counsel and witnesses. The Town agrees to use its best efforts to convince all real property owners from whom condemnation would otherwise be required to voluntarily dedicate their property for the roadway improvements. J. Nothing contained in this Agreement shall be construed to represent approval by the Town of the proposed alignment or realignment of the roads as will be contained in the Subregional Transportation Study. The Town Council specifically reserves the right to approve the alignment or realignment of such roads at such 5 10626 624 future time that commencement of construction is contemplated. 2. Successor Developers. The Town acknowledges Trust 7804 and Trust 7805 are the successor Developer under the Agreement and have all rights and obligations of the Developer thereunder and hereunder. Trust 7804 and Trust 7805 intend to assign all or portions of their rights and obligations under the Agreement from time to time to Cottonwood Properties, Inc., the intended master developer of the Property, as portions of the Property are sold; the Town hereby approves such assignment(s) provided that Cottonwood Properties, Inc. assumes the rights and obligations so assigned. The current and/or future Developer may assign all or portions of their rights and obligations under this Agreement from time to time as portions of the Property are sold and the Town approves such assignment(s) provided that such assignees assume the rights and obligations so assigned. 3. Condition to Effectiveness. Certain litigants have commenced an action against the Town in pima County Superior Court No. C-317744 to cause Marana Ordinance 96.46 to be referred to Marana voters. The obligations of Trust 7804 and Trust 7805, hereunder are expressly conditioned upon either (i) such litigation ultimately being determined in favor of the Defendants and the Intervenors therein so that Marana Ordinance 96.46 is not referred to Marana voters, or (ii) if Marana Ordinance 96.46 is referred to Marana voters, then Marana Ordinance 96.46 being approved by majority vote at the referendum election. Trust 7804 and Trust 7805 agree to be bound by the terms of this Agreement if one of the two foregoing conditions is met and if this Amendment is executed and approved by the Town on or before December 31, 1997. IN WITNESS WHEREOF the parties executed this Agreement the day and year written above. ATTEST: THE TOWN OF MARANA, an Arizona municipal corporation ", ill,l x /'" ~ '; ~,,,--, .Ba IIon.ea, Ma:;t:-IJ (,?rv,l 117, lh:trA..! t .,,::', - u:;,.- 6 10626 625 APPROVED AS TO FORM AND AUTHORITY: The foregoing Amendment has been reviewed by the undersigned attorney who has determined that it is in proper form and within the power and authority granted under the laws of the State of Arizona to the Town of Marana. Attorney TRUST 7804: LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation, as Trustee under Trust No. 7804-T only, and not in its corporate capacity :./ ~. I ! " ( By: Its :' Date: TRUST 7805: LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation, as Trustee under Trust No. 7805-T only, and not in its corporate capacity / /. 1/1. ' l pr . Ilt':z-4:.tt J~ If-3D . '7 7 By: Its: Date: 7 10626 626 STATE OF ARIZONA ss. COUNTY OF PIMA ACKNOWLEDGED before me this 1997 by Ih'r r. f ~llvt.d-u\r-. Inc., an Arizona corporation, as Trust No. 7804-T and Trust 7805-T corporate capacity. "~,.....~~,..,,,,.... . OFFICIAL SEAL { SAMANTHA SULFRIDGE NOTARY PUBLIC - ARIZONA PIMA COUNTY lAy COillll. Expires July 1, 1999 N ,+~...'~ agreement\63\042997 10626 627 i (Jj :3 [) day of .,>f7&lLJ.-' , of Lawyers Title of Arizona, vcc.C f(f~'d..n/}<tP-. of only and not in any individual or I I ~J. \f(L \~Lk'K tary Public 8 F~ECORDER ROOA - )CKET : roof.'-\GE: NO. OF PAGES: SEQUENCE: - .' SMARA TOWN OF i"1ARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 AAG 10626 636 8 9711.~5329 09/09/97 13:{t2:00 F. ANN RODRIGUEZ, RECORDED BY: GIM DEPUTY 2721 ECORDER i"1AIL AMOUNT PAID $ 9.50 AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT (Amending Document Recorded in Docket 8776 at Page 2248) (Ruelas Canyon) This Amendment (the "Amendment") is made as of I1IJGt/,ST /S , 1997 by and among the Town of Marana, an Arizona municipal corporation (the "Town"), Lawyers Title of Arizona, Inc., an Arizona corporation, as Trustee under Trust No. 7804-T ("Trust 7804") and Lawyers Title of Arizona, an Arizona corporation, as Trustee under Trust No. 7805-T ("Trust 7805"). RECITALS: A. The Town and Tortolita Mountain Properties Limited Partnership, an Arizona limited partnership, ("Tortolita") are parties to that certain Pre-Annexation Development Agreement recorded at Docket 8776 at Page 2248 in the Office of the Pima County Recorder ( "Agreement") . B. The Town and the predecessor in title of Trust 7804 and Trust 7805 have also executed an Amended and Restated Development Agreement and Inter-Governmental Agreement recorded in Docket 9969 at Page 1923 in the office of the pima County Recorder (as amended by a First Amendment and Second Amendment) relating to the District 2 property described therein which is adjacent to the Property (the "District 2 Agreement") C. Trust 7804 and Trust 7805 are the current owners of the Property described in the Agreement and are the assignees of the Developer's rights and obligations under the Agreement pursuant to the Assignment and Assumption of Ancillary Contracts recorded in Docket 10437 at Page 1728 in the Office of the pima County Recorder. Exhibit B to Marana Resolution No. 97-83 ----, 10626 636 1 D. The parties hereto desire to amend and restate portions of the Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto state, confirm and agree as follows: AGREEMENT 1. Improvements. Paragraph 3 of the Agreement is hereby amended in its entirety as follows: The parties hereto recognize and acknowledge that the development of the Property and the resulting augmentation of residential, commercial and/or recreational activities upon and about the Property which directly benefit the Town will increase the traffic flow upon certain offsite arterial roadways. These offsite roadways will be identified in a Subregional Transportation Study that will be prepared by the Town of Marana (IISubregional Transportation Studyll). The Developer shall contribute $15,420.00 toward the Subregional Transportation Study which shall be paid to the Town of Marana prior to town staff approval of the first residential subdivision final plat or commercial/ industrial development plan or subdivision final plat, excluding any golf course and resort hotel. The parties hereto further acknowledge that such development shall increase the need for construction of certain roadways to be designated on the Subregional Transportation Study, along with related improvements. The parties hereto also recognize and acknowledge that the Town does not have the current financial capacity to construct the necessary public roadway improvements to be identified in the Subregional Transportation Study. Accordingly, the Developer intends (but is not required) to construct in phases all or a part of the public roadways and related improvements to be described in the Subregional Transportation Study from time to time (and such other roadway improvements as are mutually approved by the Town and the Developer) and to dedicate same for the use and benefit of the residents of the Town and the public at large. Because of the benefit to the public health, welfare and safety if such public improvements are constructed and because of the increase in the Town's 2 '0626 637 revenues which will result from sources located upon or about the Property, the Town will establish a funding mechanism and shall reimburse the Developer (or its assignee) in full upon request of the Developer (or its assignee) for all actual out of pocket costs and expenses incurred in the construction of such public improvements described in the Subregional Transportation Study subject, however, to the conditions and limitations set forth below: A. The Town shall not be required to reimburse the Developer or its assignees for any portion of such public improvements paid for by Developer or its assignees unless a luxury resort hotel (and/or time share resort facility) of no less than 120 rooms with related recreational facilities has been completed and is operating prior to the reimbursement either on the Property or on any other property located within the RedHawk Specific Plan, as amended. B. The reimbursement funding mechanism and source of funds shall not be designated at this time but the funds may be derived from one or more of the following sources: 1. A Municipal Property Corporation; 2. Sales Taxes; 3. Highway Users Funds; 4. Local Transportation assistant funds; and 5. Other development related funds. C. At the time of any requests for reimbursement hereunder, the Town shall not be required to reimburse the Developer or its assignees for any amount in excess of one-half (1/2) of the cumulative amount of all transaction privilege taxes and sales taxes previously received by the Town from (i) room charge, food and beverage and retail sales at any hotel facilities (and/or time share resort facility) described in subparagraph A above, and (ii) golf charges, food and beverage and retail sales at any golf course 3 10626 638 and related facilities on the Property or on any other property located within the RedHawk Specific Plan, as amended, with respect to which any such hotel facilities have a tee time or reservation agreement. The Developer or its assignees shall submit requests for reimbursements for public improvements paid for by the Developer or its assignees in the prior fiscal year once per fiscal year no later than April I, and shall be paid in the next fiscal year (or such later time as the transaction privilege taxes or sales taxes described above are received by the Town) The Town shall not be required to pay for any reimbursement requests not made within one (1) year of payment for the public improvements by the Developer or its assignees. Notwi thstanding the reimbursement obligations contained ln both the prior Pre-Annexation Agreements and in this Amendment, the Town shall not be required to provide reimbursements to Developer or its assignees in excess of the amount equal to one-half of the cumulative transaction privilege or sales taxes described above less the cost of any traffic related improvements funded or constructed by the Town which were identified in the Subregional Transportation Study. The Town acknowledges and agrees that one-half (1/2) of the transaction privilege or sales taxes described above shall be utilized for traffic related improvements identified in the Subregional Transportation Study, whether such traffic related improvements are constructed by the Town or constructed by (and reimbursed to) the Developer or its assignees. D. The reimbursement amount shall be based upon an engineer's certification of the improvements made by the Developer or its assignees. The engineer shall be mutually approved by the Developer or its assignees and the Town and approval shall not be unreasonably withheld. E. No outstanding construction reimbursement shall exceed the balance of the unreimbursed cost of the improvements. 4 10626 639 F. The reimbursement provisions contained herein shall not be applicable to public improvements constructed by the Developer or any of its assignees on the property contained within the RedHawk Specific Plan, as amended. G. The Town shall not be required to pay any further reimbursements from and after December 31, 2011 irrespective of whether or not the Developer or its assignees has by then been reimbursed in full for the construction of the public improvements. H. The Town shall not be required to reimburse the Developer (or its assignee) for any portion of such public improvements not located within the town limits of the Town at the time such improvements are constructed. I. The Town acknowledges that the construction of the public roadway improvements to be described in the Subregional Transportation Study and other public roadway improvements to provide access to and through the Property are necessary for the development of the Property, will promote health, safety and welfare of the residents of the Town, and might require condemnation by the Town of certain real property to acquire right-of- way for access or improvements for the roadway improvements to the Property. Recognizing the Town's interest in the construction of the public roadways and the future development of the Property, it is determined to be in the public interest and the Town agrees to initiate and diligently pursue condemnation of any real property necessary for the construction of the roadway improvements; provided, however, that the Developer shall pay all costs, expenses, judgment and award of such condemnation. The Town and the Developer shall cooperate in the preparation for, and preparation of evidence in, the condemnation proceedings, and in the selection of legal counsel and witnesses. The Town agrees to use its best efforts to convince all real property owners from 5 '0626 640 whom condemnation would otherwise be required to voluntarily dedicate their property for the roadway improvements. J. Nothing contained in this Agreement shall be construed to represent approval by the Town of the proposed alignment or realignment of the roads as will be contained in the Subregional Transportation Study. The Town Council specifically reserves the right to approve the alignment or realignment of such roads at such future time that commencement of construction is contemplated. 2. Successor Developers. The Town acknowledges Trust 7804 and Trust 7805 are the successor Developer under the Agreement and have all rights and obligations of the Developer thereunder and hereunder. Trust 7804 and Trust 7805 intend to assign all or portions of their rights and obligations under the Agreement from time to time to Cottonwood Properties, Inc., the intended master developer of the Property, as portions of the Property are sold; the Town hereby approves such assignment(s) provided that Cottonwood Properties, Inc. assumes the rights and obligations so assigned. The current and/or future Developer may assign all or portions of their rights and obligations under this Agreement from time to time as portions of the Property are sold and the Town approves such assignment(s) provided that such assignees assume the rights and obligations so assigned. 3. Condition to Effectiveness. Certain litigants have commenced an action against the Town in Pima County Superior Court No. C-317744 to cause Marana Ordinance 96.46 to be referred to Marana voters. The obligations of Trust 7804 and Trust 7805 hereunder are expressly conditioned upon either (i) such litigation ultimately being determined in favor of the Defendants and the Intervenors therein so that Marana Ordinance 96.46 is not referred to Marana voters, or (ii) if Marana Ordinance 96.46 is referred to Marana voters, then Marana Ordinance 96.46 being approved by majority vote at the referendum election. Trust 7804 and Trust 7805 agree to be bound by the terms of this Agreement if one of the two foregoing conditions is met and if this Amendment is executed and approved by the Town on or before December 31, 1997. 6 10626 641 IN WITNESS WHEREOF the parties executed this Agreement the day and year written above. ATTEST: THE TOWN OF MARANA, an Arizona municipal corporation ~ -'1 ~ I . i'".ui .I '; .'-J Ed II~Ma or t (({v /iI. jJ'f {tV TO FORM AND The foregoing Amendment has been reviewed by the undersigned attorney who has determined that it is in proper form and within the power and authority granted under the laws of the state of Arizona ;;.o--):he Town of Marana. 1'7 ,/ ( 1;- .> 1 ' dil!;; "'j " /.. - ... ') \"" .,01.1 Town Attorney TRUST 7804: LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation, as Trustee under Trust No. 7804-T only, and not in its corporate capacity I. / . /~~ ;. ~,/: .' "-/'-Y By: Its: Date: 7 10626 642 TRUST 7805: LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation, as Trustee under Trust No. 7805-T only, and not in its corporate capacity By: Its: Date: STATE OF ARIZONA ss. COUNTY OF PIMA ACKNOWLEDGED before me this 19 9 7 by \),' ct I' 't-:;NVL/l ~-- v Inc., an Arizona corporation, as Trust No. 7804-T and Trust 7805-T corporate capacity. , '.? ~'. d f '1; i I t ....?() ay 0 )'-;//v(// , of Lawyers Title V; U i (fs.'cf2O-,-i?" only and not in any of Arizona, of individual or ~,~",._,~,~_"",,,.4'''~''''''''Y''''~ OFFICIAL SEAL @SAMANTHA SULFRIDGE NOTf.,fW PUBLIC - ARIZONA w PIMA COUNTY lAy GOI\1>.l. Expires July 1. 1999 N"S"ear'''''''~'''''~ " l' " ,..".... nXL \\:' J~{f" g,ry Public agreement\62\042997 8 \0626 643 SMARA TOWN OF t-1ARANA ATTN: TOWN CLERK 13251 N LON ADAMS MARANA AZ -., DOCKET: PAGE: NO. OF PAGES: SEQUENCE: 10626 F. ANN RODRIGUE~ PECORDER RECORDED EN: G I. '. DEPUTY RECORDER 2721 ROO A 6P8 AAG 8 971l.5328 09/09/97 13 : i+2 : 00 \ .,~ ~ RD 85653 MAIL AMOUNT PAID $ 9.50 AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT (Amending Document Recorded in Docket 9211 at Page 369) (Baj ada) This Amendment (the "Amendment") is made as of /}tJGUST /5" ,1997 by and among the Town of Marana, an Arizona municipal corporation (the "Town"), Lawyers Title of Arizona, Inc., an Arizona corporation, as Trustee under Trust No. 7804-T ("Trust 7804") and Lawyers Title of Arizona, an Arizona corporation, as Trustee under Trust No. 7805-T ("Trust 7805"). RECITALS: A. The Town and Tortolita Mountain Properties Limited Partnership, an Arizona limited partnership, ("Tortolita") are parties to that certain Pre-Annexation Development Agreement recorded at Docket 9211 at Page 369 in the Office of the pima County Recorder ("Agreement"). B. The Town and the predecessor in title of Trust 7804 and Trust 7805 have also executed an Amended and Restated Development Agreement and Inter-Governmental Agreement recorded in Docket 9969 at Page 1923 in the office of the Pima County Recorder (as amended by a First Amendment and Second Amendment) relating to the District 2 property described therein which is adjacent to the Property (the "District 2 Agreement") C. Trust 7804 and Trust 7805 are the current owners of the Property described in the Agreement and are the assignees of the Developer's rights and obligations under the Agreement pursuant to the Assignment and Assumption of Ancillary Contracts recorded in Docket 10437 at Page 1728 in the Office of the pima County Recorder. Exhibit C to Marana Resolution No. 97-83 10626 628 ~ D. The parties hereto desire to amend and restate portions of the Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto state, confirm and agree as follows: AGREEMENT 1. Improvements. Paragraph 4 of the Agreement is hereby amended in its entirety as follows: The parties hereto recognize and acknowledge that the development of the Property and the resulting augmentation of residential, commercial and/or recreational activities upon and about the Property which directly benefit the Town will increase the traffic flow upon certain offsite arterial roadways. These offsite roadways will be identified in a Subregional Transportation Study that will be prepared by the Town of Marana ("Subregional Transportation Study"). The Developer shall contribute $15,420.00 toward the Subregional Transportation Study which shall be paid to the Town of Marana prior to town staff approval of the first residential subdivision final plat or commercial/industrial development plan or subdivision final plat, excluding any golf course and resort hotel. The parties hereto further acknowledge that such development shall increase the need for construction of certain roadways to be designated on the Subregional Transportation Study, along with related improvements. The parties hereto also recognize and acknowledge that the Town does not have the current financial capacity to construct the necessary public roadway improvements to be identified in the Subregional Transportation Study. Accordingly, the Developer intends (but is not required) to construct in phases all or a part of the public roadways and related improvements to be described in the Subregional Transportation Study from time to time (and such other roadway improvements as are mutually approved by the Town and the Developer) and to dedicate same for the use and benefit of the residents of the Town and the public at large. Because of the benefit to the public health, welfare and safety if such public improvements 2 10626 629 are constructed and because of the increase in the Town's revenues which will result from sources located upon or about the Property, the Town will establish a funding mechanism and shall reimburse the Developer (or its assignee) in full upon request of the Developer (or its assignee) for all actual out of pocket costs and expenses incurred in the construction of such public improvements described in the Subregional Transportation Study subject, however, to the conditions and limitations set forth below: A. The Town shall not be required to reimburse the Developer or its assignees for any portion of such public improvements paid for by Developer or its assignees unless a luxury resort hotel (and/or time share resort facility) of no less than 120 rooms with related recreational facilities has been completed and is operating prior to the reimbursement either on the Property or on any other property located within the RedHawk Specific Plan, as amended. B. The reimbursement funding mechanism and source of funds shall not be designated at this time but the funds may be derived from one or more of the following sources: 1. A Municipal Property Corporation; 2. Sales Taxes; 3. Highway Users Funds; 4. Local Transportation assistant funds; and 5. Other development related funds. C. At the time of any requests for reimbursement hereunder, the Town shall not be required to reimburse the Developer or its assignees for any amount in excess of one-half (1/2) of the cumulative amount of all transaction privilege taxes and sales taxes previously received by the Town from (i) room charge, food and beverage and retail sales at any hotel facilities (and/or time share resort facility) described in 3 10626 630 subparagraph A above, and (ii) golf charges, food and beverage and retail sales at any golf course and related facilities on the Property or on any other property located within the RedHawk Specific Plan, as amended with respect to which any such hotel facilities have a tee time or reservation agreement. The Developer or its assignees shall submit requests for reimbursements for public improvements paid for by the Developer or its assignees in the prior fiscal year once per fiscal year no later than April 1, and shall be paid in the next fiscal year (or such later time as the transaction privilege taxes or sales taxes described above are received by the Town) The Town shall not be required to pay for any reimbursement requests not made within one (1) year of payment for the public improvements by the Developer or its assignees. Notwithstanding the reimbursement obligations contained in both the prior Pre-Annexation Agreements and in this Amendment, the Town shall not be required to provide reimbursements to Developer or its assignees in excess of the amount equal to one-half of the cumulative transaction privilege or sales taxes described above ~ the cost of any traffic related improvements funded or constructed by the Town which were identified in the Subregional Transportation Study. The Town acknowledges and agrees that one-half (1/2) of the transaction privilege or sales taxes described above shall be utilized for traffic related improvements identified in the Subregional Transportation Study, whether such traffic related improvements are constructed by the Town or constructed by (and reimbursed to) the Developer or its assignees. D. The reimbursement amount shall be based upon an engineer's certification of the improvements made by the Developer or its assignees. The engineer shall be mutually approved by the Developer or its assignees and the Town and approval shall not be unreasonably withheld. 4 10626 631 E. No outstanding construction reimbursement shall exceed the balance of the unreimbursed cost of the improvements. F. The reimbursement provisions contained herein shall not be applicable to public improvements constructed by the Developer or any of its assignees on the property contained within the RedHawk Specific Plan, as amended. G. The Town shall not be required to pay any further reimbursements from and after December 31, 2011 irrespective of whether or not the Developer or its assignees has by then been reimbursed in full for the construction of the public improvements. H. The Town shall not be required to reimburse the Developer (or its assignee) for any portion of such public improvements not located within the town limits of the Town at the time such improvements are constructed. I. The Town acknowledges that the construction of the public roadway improvements to be described in the Subregional Transportation Study and other public roadway improvements to provide access to and through the Property are necessary for the development of the Property, will promote health, safety and welfare of the residents of the Town, and might require condemnation by the Town of certain real property to acquire right-of- way for access or improvements for the roadway improvements to the Property. Recognizing the Town's interest in the construction of the public roadways and the future development of the Property, it is determined to be in the public interest and the Town agrees to initiate and diligently pursue condemnation of any real property necessary for the construction of the roadway improvements; provided, however, that the Developer shall pay all costs, expenses, judgment and award of such condemnation. The Town and the Developer 5 10626 632 shall cooperate in the preparation for, and preparation of evidence in, the condemnation proceedings, and in the selection of legal counsel and witnesses. The Town agrees to use its best efforts to convince all real property owners from whom condemnation would otherwise be required to voluntarily dedicate their property for the roadway improvements. J. Nothing contained in this Agreement shall be construed to represent approval by the Town of the proposed alignment or realignment of the roads as will be contained in the Subregional Transportation Study. The Town Council specifically reserves the right to approve the alignment or realignment of such roads at such future time that commencement of construction is contemplated. 2. Successor Developers. The Town acknowledges Trust 7804 and Trust 7805 are the successor Developer under the Agreement and have all rights and obligations of the Developer thereunder and hereunder. Trust 7804 and Trust 7805 intend to assign all or portions of their rights and obligations under the Agreement from time to time to Cottonwood Properties, Inc., the intended master developer of the Property, as portions of the Property are soldi the Town hereby approves such assignment(s) provided that Cottonwood Properties, Inc. assumes the rights and obligations so assigned. The current and/or future Developer may assign all or portions of their rights and obligations under this Agreement from time to time as portions of the Property are sold and the Town approves such assignment(s) provided that such assignees assume the rights and obligations so assigned. 3. Condition to Effectiveness. Certain litigants have commenced an action against the Town in Pima County Superior Court No. C-317744 to cause Marana Ordinance 96.46 to be referred to Marana voters. The obligations of Trust 7804 and Trust 7805 hereunder are expressly conditioned upon either (i) such litigation ultimately being determined in favor of the Defendants and the Intervenors therein so that Marana Ordinance 96.46 is not referred to Marana voters, or (ii) if Marana Ordinance 96.46 is referred to Marana voters, then Marana Ordinance 96.46 being approved by majority vote at the referendum election. Trust 7804 and Trust 6 10626 633 7805 agree to be bound by the terms of this Agreement if one of the two foregoing conditions is met and if this Amendment is executed and approved by the Town on or before December 31, 1997. IN WITNESS WHEREOF the parties executed this Agreement the day and year written above. ATTEST: THE TOWN OF MARANA, an Arizona municipal corporation 0'~ '1'''~ .EJ IIo~~a, Mayo ' Ora tJJ. Act r"AJ APPROVED AS TO FORM AND AUTHORITY: The foregoing Amendment has been reviewed by the undersigned attorney who has determined that it is in proper form and within the power and authority granted under the laws of the state of Arizona to the Town of Marana. li, Town Attorney TRUST 7804: LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation, as Trustee under Trust No. 7804-T only, and not in its corporate capacity By: Its: Date: 7 10626 634 TRUST 7805: LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation, as Trustee under Trust No. 7805-T only, and not in its corporate capacity By: Its: Date: STATE OF ARIZONA ss. COUNTY OF PIMA ACKNOWLEpGED before me this 3D day of )!-1l f-,ct 1997 by V~(~I tV"Ni/li'\"r----- , of Lawyers Title of Arizona, Inc., an Arizona corporation, as ___U~~/ff~'dk~~ of Trust No. 7804-T and Trust 7805-T only and not in any individual or corporate capacity. ~~"'~' OFfICIAL SEAL ( SAMANTHA SULFRIDGE ~ NOT ARV PUBLIC - ARIZONA - PIMA COUNTY 8."... ",,'""", '099 N -~"6eal<' . ,lnll \'-U~O tary Public agreement\60\042997 8 10626 635