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HomeMy WebLinkAboutResolution 2010-047 canal undergrounding agreement with cortaro-marana irrigation districtMARANA RESOLUTION N0.2010-47 RELATING TO PUBLIC WORKS; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A CANAL UNDERGROUNDING AGREEMENT WITH CORTARO-MARANA IRRIGATION DISTRICT/CORTARO WATER USERS ASSOCIATION WHEREAS the Town plans to construct a public works project called the Barnett Linear Park & Flood Control Channel UPRR to Santa Cruz River, Town project number 2003-016 (the "Barnett Channel project"), consisting of a combined flood control facility and linear park generally following the alignment of existing Barnett Road; and WHEREAS the Cortaro-Marana Irrigation District/Cortaro Water Users Association (CMID/CWUA) desires written assurance that the CMID/CWUA irrigation canal adjacent to the Marana Health Center and Marana Mortuary & Cemetery properties will be undergrounded at no cost to CMID/CWUA in connection with the construction of the Barnett Channel project; and WHEREAS the Town Council finds that the proposed Canal Undergrounding Agreement with CMID/CWUA is in the best interests of the Town and its residents and landowners. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The "Canal Undergrounding Agreement between the Town of Marana and Cortaro-Marana Irrigation District/Cortaro Water Users Association" attached as Exhibit A to and incorporated by this reference in this resolution is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. 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 intergovernmental agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of May, 2010. ATTEST: ocelyn Bronson, Town Clerk ,. L~~-- Mayor E H ~ea APPROVED AS TO FORM: .i' ~,,T /`~F nk Cassidy, Town Atto " y {FC1317.DOC /} F. ANN RODRIGUEZ, RECORDER RECORDED BY: RJL DEPUTY RECORDER 9549 PE-1 w CHID 12253 W CRIER RD MARANA AZ 85653 voF ~rn~ ,WQ' O ~ A ~ ar w e. x ~~~ ~ ~ t~ ~ '~RIZO~~' DOCKET: PAGE: NO. OF PAGES SEQUENCE: AG MAZI, AMOUNT PAID 13822 20101060001 06/03/2010 08:09 10.00 CANAL UNDERGROUNDING AGREEMENT BETWEEN THE TOWN OF MARANA AND CORTARO-MARANA IRRIGATION DISTRICT/ CORTARO WATER USERS ASSOCIATION This CANAL UNDERGROUNDING AGREEMENT (this "Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation, (the "Town"); CoRTARO- MARANA IRRIGATION DISTRICT, Pima County, Arizona, a political subdivision of the State of Arizona ("CHID"), and CMID's agent, the CORTARO WATER USERS ASSOQATION, an Arizona corporation ("CWUA"). QVIID and CWUA are referred to collectively as "Q1~IID/CWUA" and the Town and CHID/CWUA are collectively referred to as the "Parties," either one of which is individually referred to as a "Party." RECITALS A. The Town plans to construct a public works project called the Barnett Linear Park & Flood Control C~lannel UPRR to Santa Cruz River, Town project number 2003-016 (the "Barnett Channel project"), consisting of a combined flood control facility and linear park generally following the alignment of existing Barnett Road. B. Paragraph 08.03.11 of the Town's Land Development Code provides, and at all times since October 1991 has provided, in relevant part: Before a permit can be issued for development or doubling the enterprise density of parcels or lots with an irrigation channel, ditch or line either within the parcel or lot or adjacent thereto within perimeter easements or the nearest 'h of a street or alley right of way, such irrigation facilities shall be undergrounded in accordance with a plan and schedule acceptable and agreed upon by the Town Engineer, the subdivider and the owner of the imgation facilities. Such undergrounding shall be done in accordance with Town Standards. C. On June 17, 2008, the Town entered into the "Marana Health Center Development Agreement," recorded in the Pima County Recorder's off ice on July 2, 2008 at Docket 13340, Page 20 (the "MHC DA"), addressing certain development requirements for the construction of a health center on the parcel of property located at the northwest corner of Barnett Road and Civic Center Drive in Marana. D. On January 6, 2009, the Town entered into the "Marana Cemetery Development Agreement," recorded in the Pima County Recorder's office on January 15, 2009 at Docket 13475, Page 184 (the "Cemetery DA"}, addressing certain development requirements far the canstnlction of a cemetery on the parcel of property located at the northwest comer of Barnett Raad and the Tangerine Farms Road alignment in Marana. E. The properties which were the subject of both the MHC DA and the Cemetery DA are located immediately north of the Barnett Channel project, and the Subject CHID/ CWUA Irrigation Canal is located along their southern borders, just north of existing Barnett Raad. F. CHID/CWUA was not a party to either the MHC DA or the Cemetery DA. {40020816.DOC / 2} - 1 - 5/3/2010 10:00 AM FJG L~. G. Paragraph 2.5 of the MHC DA and paragraph 3.6 of the Cemetery DA provide as follows: CMID Channel. Any undergrounding or modification of the CMID channel that lies between the property and the future Barnett Channel shaIl occur at no cost to [the Developer]. This paragraph does not create an affirrrlative Town obligation to modify or underground the CNIID channel. H. The Council Communication memoranda enclosed as part of the Marana Town Council's agenda packages for the MHC DA and Cemetery DA agenda items provided as follows: [The Developer] will not be required to underground the Cortaro Marana Irrigation District channel located along the north side of Barnett Road and along the south side of the [development project] site. If the channel is required to be undergrounded, the Town will be responsible for those costs in connection with the Barnett Channel project. I. The Town believes that the public's interests are best advanced by minimizing development costs of quasi-public uses (such as a health center and a cemetery} and by avoiding possible duplication of costs associated with unforeseen inconsistency between undergrounding the Subject CMID/CWUA Irrigation Canal at the time of property development and then possibly having to relocate the undergrounded canal to accommodate the Barnett Channel project. J. CMID/CWUA desires written assurance that the Subject CIVIID/CWUA Irrigation Canal will be undergrounded at no cost to CMID/CWUA in connection with the construction of the Barnett Channel project before it will issue permits authorizing development work in the vicinity of the Subject CMID/CWUA Irrigation Canal. AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. Toaaz Unde~grnuradirig of floe Subjat CMID/CWUA Irri~twn Canal. When the Barnett Channel project is constructed, the Town shall underground the Subject CIVIID/CWUA irrigation Canal at no cost to C'NIID/CWUA. 2. Defimtianz g~ tl~ `~ub1~ QVIID/CWUA Irri~ztiavz Carta For purposes of this Agreement, the ter7xz the "Subject CMID/CWLTA Imgation Canal" means the main CMID/CWUA irrigation canal located adjacent to currently-existing Barnett Road and adjacent to (a} the property which is the subject of the MHC DA and (b} the property which is the subject of the Cemetery DA, Nothing in this paragraph shall preclude the Town from extending the undergrounding beyond the reaches described in the preceding sentence. The "Subject CMID/CWUA Irrigation Canal" does not include any irrigation canals that distribute imgation water from the main CMID/CWUA irrigation canal to individual properties. 3. CMID/CWUA Perrr~ts. In reliance on the Town's performance of its obligations under this Agreement, and subject to the permit applicant's submission of all CIVIID/CWUA standard and typical documents and fees, CMID/CWUA will issue pemuts authorizing development work in the vicinity of the Subject CNIID/CWUA Irrigation Canal and on the properties which are the subject of the MHC DA and the Cemetery DA, without first requiring the Subject QVIID/CWUA Irrigation Canal to be undergrounded. 4. Risk g~lryr~ From the effective date of this Agreement until the Subject CNIID/CWUA Irrigation Canal is undergrounded, the Town shall be liable for and shall indemnify and hold ham~less CIVIID/CWUA far any injury at the Subject CMID/CWUA Imgation Canal that would {00020816.DOC/ 2} - ~ - 5/3/2010 10:D0 AM FJC not have been sustained or would not have occurred if the Subject CMID/CWUA Irrigation Canal had been undergrounded. C1VIID/CWUA shall be listed as an additional insured on the Town's general liability insurance policy for purposes of this paragraph. 5. Co~mterpartr. This Agreement maybe executed in multiple counterparts, each of which shall, for all purposes, be deemed an original and all of which, taken together, shall constitute one and the same agreement. 6. Cara~latioal for Conflux. This Agreement is subject to A.RS. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 7. Signautro Authority. Each Party represents and warrants to the other Parry that the person executing this Agreement on its behalf is authorized to execute this Agreement on the Parts behalf, and each intends that its representations and warranties be relied upon. DATED this ~'~day of May, 2010. TOWN OF MARANA, an Arizona municipal corporation (the "Town") By: Ed onea, Mayor Date: JX'. ~~- / d ATTEST: elyn C. onson, Clerk GORTARO-MARANA IRRIGATION DISTRICT, a political subdivision of the State of Arizona ("C~VIID"} By: President [f'rin[ Namel mhomas I~Llltl. Date: ,TnnP 7, ?f}1(7 CoR O W USERS ASSOQATION, Arizo co ration A") By President [Print Namel p~-m Pn~t Date: June 2, 2010 The foregoing agreement has been reviewed pursuant to A.RS. § 11-952 by legal counsel for the Parties, who have deterniined that it is in proper form and is within the powers and authority granted under the laws of the State of Arizona to those Parties to the agreement represented by the undersigned. ~~~ N~arana 'd'own Attorney A o y for D/C,WLJA r'~~' c~ {DOD20816.DOC/ 2} - 3 - 5/3/2010 I0:00 AM FJC MARANA RESOLUTION N0.2010-47 RELATING TO PUBLIC WORKS; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A CANAL UNDI:RGROUNDING AGREEMENT WITH CORTARO-MARANA IRRIGATION DISTRICT/CORTARO WATER USERS ASSOCIATION WHEREAS the Town plans to construct a public works project called the Barnett Linear Park & Flood Control Channel UPRR to Santa Cruz River, Tawn project number 2003-016 (the `Barnett Channel project"), consisting of a combined flood control facility and linear park generally following the alignment of existing Barnett Road; and WHEREAS the Cortaro-Marano Irrigation District/Cortaro Water Users Association (CMID/CWUA} desires written assurance that the CMID/CWUA irrigation canal adjacent to the Marano Health Center and Marano Mortuary & Cemetery properties will be undergrounded at no cost to CMID/CWUA in connection with the construction of the Barnett Channel project; and WHEREAS the Town Council finds that the proposed Canal Undergrounding Agreement with CMIDICWUA is in the best interests of the Town and its residents and landowners. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The "Canal Undergrounding Agreement between the Town of Marano and Cortaro-Marano Irrigation DistrictJCortaro Water Users Association" attached as Exhibit A to and incorporated by this reference in this resolution is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marano. SECTION 2. 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 intergovernmental agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4`h day of May, 2010. ATTEST: ocelyn Bronson, Town Clerk Mayor E H ~ea APPROVED AS TO FORM: -r~, ~F nk Cassi. y, Town Atto y f. ,. , {rc~3».ooc ~} SECURITY AGREEMENT, ASSIGNMENT OF RIGHTS UNDER CONTRACT; POWER OF ATTORNEY; AND ACKNOWLEDGMENT AND CONSENT THIS SECURITY AGREEMENT, ASSIGNMENT OF RIGHTS UNDER CONTRACT; POWER OF ATTORNEY; AND ACKNOWLEDGEMENT AND CONSENT {"Assignment") is made this day of September, 2010 by MARANA MORTUARY & CEMETERY PROPERTIES, LLC, an Arizona limited liability company ("Assignor"), whose address is 2200 East River Road, Suite 105, Tucson, Arizona 85718, and is made with reference to the following each of which is a material basis and a substantive part for the agreement set forth herein. Recitals The parties agree that the following recitals are true and constitute a material part of this Agreement: A. Assignor and the TOWN OF MARANA, an Arizona municipal corporation ("Marano"), whose mailing address is 11555 W. Civic Center Drive, Marano, AZ 85653, have entered into that certain Town of Marano Agreement for Construction of Water Facilities Under Private Contract dated on or about August 18, 2009, and recorded on August 20, 2009 at docket 13626, page 1651 in the Official Records of Pima County, Arizona (the "Agreement"), regarding the construction of water infrastructure improvements for a cemetery, mortuary and related improvements being built by Assignor (the "Project") at the real property located at 12146 West Barnett Road, Marano, Arizona 85653 {the "Property"}. B. The construction of the Project is to be financed with funds (the "Loan") to be provided pursuant to that certain LOAN AGREEMENT (the "Loan Agreement") of even date herewith by and between Assignor and NORTHERN TRUST, N.A., a national banking association ("Lender"), whose address is 3450 East Sunrise Drive, Suite 100, Tucson, Arizona 85718, and Assignor. C. As security for the Loan and as a material inducement of Lender to make the Loan and enter the Loan Agreement, Assignor has agreed to assign Assignor's interest in the Agreement to Lender subject to the terms and conditions as set forth herein. Now therefore, in consideration of the foregoing and other good and valuable consideration, the receipt and suff ciency of which is hereby acknowledged, Assignor hereby confirms and agrees as follows: 1. The above recitals are incorporated herein as substantive provisions of this Assignment. 2. As security for the Loan and as a material inducement to Lender to make the Loan, Assignor hereby: (i) grants a security interest in; and (ii) exclusively assigns, transfers, sets over and conveys unto Lender, all right, title and interest in and to the Agreement. 3. In connection with the foregoing assignment to Lender, the exclusive authority is hereby given Lender, on or at any time following any Triggering Event (as defined below), at the election of Lender, to take over the Project, to perform all acts on the part of Assignor under the Agreement, to promote the completion of the work relating to Improvements (as defined in the Loan Agreement) and/or to enforce the rights of Assignor and receive performance under the Agreement. A Triggering Event shall be any breach of or occurrence of an Event of Default (as the term may be defined under the applicable document) under any of the following documents: (a) The Agreement; (b) The Loan Agreement or any other Loan Document (as defined in the Loan Agreement). 4. Lender is hereby appointed the true and lawful attorney-in-fact for and on behalf of Assignor, upon a Triggering Event, to act in the name of Assignor or Lender or otherwise and to demand, sue for and receive all performances, labor and materials due with respect to such Agreement and to take all Lawful steps for the enforcement of the Agreement, to compromise and settle any claims or causes of action arising therefrom and give acquittances and other sufficient discharges relating thereto, and for Assignor, in Assignor's name and stead and as Assignor's act and deed (all in the name of Assignor or of Lender or Lender's nominee at the option of Lender), to sign, seal, execute, acknowledge and deliver all documents and instruments and do and perform each and every act and thing whatsoever which may be necessary or proper to receive and/or enforce performance under the Agreement .and to carry out and give effect to this Assignment and the powers herein granted, as fully and to all intents and purposes as Assignor might or could do on Assignor's own behalf. 5. By accepting this Assignment or by exercising any of Lender's powers hereunder, Lender shall not be subject to any obligation or liability with respect to any duty to perform under any of the terms, conditions, covenants or provisions of the Agreement, except as hereinafter provided, but any and all such obligations, liabilities and duties shall continue to rest with Assignor as if this Assignment had not been made. 6. Upon the occurrence of a Triggering Event, Assignor hereby authorizes and directs Marano to make and render all acts and performances required by Marano to be made under the terms of the Agreement directly to Lender or Lender's nominee as Lender may direct. Assignor hereby relieves Marano from any and all claims and liabilities that Assignor may then have or assert by reason of making or rendering such performance or acts to Lender ar Lender's nominee. 7. In addition to any and all rights provided herein, Lender shall have all rights of a secured party under the Arizona Uniform Commercial Code as it may be amended from time to time. 8. Assignor hereby waives any defense by reason of the cessation from any cause whatsoever of the liability of Assignor to Lender or by reason of any disability. 9. This Assignment is for the benefit and protection of Lender and Lender's successors and assigns and of no other parties. The Power of Attorney given herein is a power coupled with an interest and shall be irrevocable until repayment in full of the Loan. 10. This Assignment shall not impose upon Lender the obligation to exercise any of the foregoing rights and powers in any event, but such rights are granted to Lender solely for Lender's protection and benefit and may be exercised or not exercised upon a Triggering Event as hereinabove provided at Lender's sole and uncontrolled discretion. No failure to exercise any option, election or right of Lender provided hereunder shall operate to waive, release or in any way diminish the right of Lender to exercise or enforce any rights herein provided nor shall the exercise of any right hereunder operate as a waiver of any other right or remedy of Lender under the Loan Agreement or any document evidencing or securing the indebtedness of Assignor to Lender. 11. Should Lender employ legal counsel or bring an action at law or proceeding to enforce the terms hereof, Assignor shall pay a!1 costs of suit and collection, including any and all attorneys' fees actually incurred by Lender. 12. All notices, requests, demands or other communications hereunder shall be in writing and shall be addressed to the addresses set forth above, or to such other address as either party may designate in writing. All notices hereunder shall be effective: (a) three (3) days after deposit in the U. S. Mail, postage prepaid, registered or certified mail, return receipt requested; (b) upon delivery, if delivered in person to the address set forth above; or (c) upon delivery, if sent by commercial express service, such as Federal Express; except that notices of change of address shall be effective ten (10) days after the effective date of all other notices hereunder. IN WITNESS WHEREOF, this Assignment has been executed as of the first date written above. ASSIGNOR: Marano Mortuary and Cemetery Properties, LLC, an Arizona limited liability company By: Pahlmeyer, LLC, an rizona limited liability Company By: Rob A. orken, III, Member By: The Matthew Scott Stiteler Revocable Trust, u/a da /1Q/03, Member yc Matthew S. Stiteler, Trustee ACKNOWLEDGMENT AND CONSENT OF THE TOWN OF MARANA The TOWN OF MARANA, an Arizona municipal. corporation ("Marana"), whose mailing address is 11555 W. Civic Center Drive, Marana, AZ 85653, is the a party to the Agreement referred to in the foregoing Assignment. The undersigned acknowledges and consents to the Assignment and agrees, upon the occurrence of a Triggering Event and the election of Lender as described in Section 3 of the Assignment, to allow Lender in Assignor's stead, all rights of Assignor under the Agreement and to render all acts and performances required by it to be made under the terms of the Agreement, directly to Lender or its nominee as Lender may direct. This Acknowledgment and Consent and the agreement of the undersigned contained herein is conditioned upon the following: (i) neither the Assignment nor this Acknowledgment and Consent shall give Lender any greater rights under the Agreement than those of Assignor, and (ii} upon the occurrence of an Event of Default and the election of Lender as described in Sections 2 and 3 of the Assignment, Lender will perform all of the obligations and agreements of Assignor under the Agreement. However, the undersigned understands that unless and until such Triggering Event and election by Lender, Lender has absolutely no obligation to perform the obligations and agreements of Assignor under the Agreement. The undersigned agrees to notify Lender in writing in the event of any breach by Assignor under the Agreement. EXECUTED as of the ~~'~ day of ~~~~~~ , 2010. THE TOWN OF MARANA, an Arizona municipal corporation sy: f Print Name• ~, ~ 1 ~ ~ ~~1 Its: ~~~~.-1 ~ ~~ .. ~,i f6f,~'S.Ya.<f ~9'O eE,ul~~o~il ~1~P~~1 SECURITY AGREEMENT, ASSIGNMENT OF RIGHTS UNDER LICENSE AGREEMENT; POWER OF ATTORNEY; AND ACKNOWLEDGMENT AND CONSENT THIS SECURITY AGREEMENT, ASSIGNMENT OF RIGHTS UNDER LICENSE AGREEMENT; POWER OF ATTORNEY; AND ACKNOWLEDGEMENT AND CONSENT {"Assignment") is made this day of September, 2010 by MARANA MORTUARY & CEMETERY PROPERTIES, LLC, an Arizona limited liability company ("Assignor"), whose address is 2200 East River Road, Suite 105, Tucson, Arizona 85718, and is made with reference to the following each of which is a material basis and a substantive part for the agreement set forth herein. Recitals The parties agree that the following recitals are true and constitute a material part of this Agreement: A. Assignor and the TOWN OF MARANA, an Arizona municipal corporation ("Marano"), whose mailing address is 11555 W. Civic Center Drive, Marano, AZ 85653, have entered into that certain License Agreement, dated August 19, 2009, and recorded on September 2, 2009, at docket 13635 page 1392 in the Official Records of Pima County, Arizona (the "Agreement"), related to Assignor's development of a cemetery, mortuary and related improvements being built by Assignor {the "Project") at the real property located at 12146 West Barnett Road, Marano, Arizona 85653 (the "Properly"). B. The construction of the Project is to be financed with funds (the "Loan") to be provided pursuant to that certain LOAN AGREEMENT (the "Loan Agreement") of even date herewith by and between Assignor and NORTHERN TRUST, N.A., a national banking association ("Lender"}, whose address is 3450 East Sunrise Drive, Suite 100, Tucson, Arizona 85718, and Assignor. C. As security for the Loan and as a material inducement of Lender to make the Loan and enter the Loan Agreement, Assignor has agreed to assign Assignor's interest in the Agreement to Lender subject to the terms and conditions as set forth herein. Now therefore, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor hereby confirms and agrees as follows: 1. The above recitals are incorporated herein as substantive provisions of this Assignment. 2. As security for the Loan and as a material inducement to Lender to make the Loan, Assignor hereby: (i) grants a security interest in; and (ii} exclusively assigns, transfers, sets over and conveys unto Lender, all right, title and interest in and to the Agreement. 3. In connection with the foregoing assignment to Lender, the exclusive authority is hereby given Lender, on or at any time following any Triggering Event (as defined below), at the election of Lender, to take over the Project, to perform all acts on the part of Assignor under the Agreement, to promote the completion of the work relating to Improvements (as defined in the Loan Agreement) and/or to enforce the rights of Assignor and receive performance under the Agreement. A Triggering Event shall be any breach of ar occurrence of an Event of Default (as the term may be defined under the applicable document) under any of the following documents: (a) The Agreement; (b) The Loan Agreement or any other Loan Document {as defined in the Loan Agreement). 4. Lender is hereby appointed the true and lawful attorney-in-fact for and on behalf of Assignor, upon a Triggering Event, to act in the name of Assignor or Lender or otherwise and to demand, sue for and xeceive all performances, labor and materials due with respect to such Agreement and to take all lawful steps for the enforcement of the Agreement, to compromise and settle any claims or causes of action arising therefrom and give acquittances and other sufficient discharges relating thereto, and for Assignor, in Assignor's name and stead and as Assignor's act and deed (all in the name of Assignor or of Lender or Lender`s nominee at the option of Lender}, to sign, seal, execute, acknowledge and deliver all documents and instruments and do and perform each and every act and thing whatsoever which may be necessary or proper to receive and/or enforce performance under the Agreement and to carry out and give effect to this Assignment and the powers herein granted, as fully and to all intents and purposes as Assignor might or could do on Assignor's own behalf. 5. By accepting this Assignment or by exercising any of Lender's powers hereunder, Lender shall not be sub}ect to any obligation or liability with. respect to any duty to perform under any of the terms, conditions, covenants or provisions of the Agreement, except as hereinafter provided, but any and all such obligations, liabilities and duties shall continue to rest with Assignor as if this Assignment had not been made. 6. Upon the occurrence of a Triggering Event, Assignor hereby authorizes and directs Marana to make and render all acts and performances required by Marana to be made under the terms of the Agreement directly to Lender or Lender's nominee as Lender may direct. Assignor hereby relieves Marana from any and all claims and liabilities that Assignor may then have or assert by reasan of making or rendering such performance or acts to Lender or Lender's nominee. 7. In addition to any and all rights provided herein, Lender shall have all rights of a secured party under the Arizona Uniform Commercial Code as it maybe amended from time to time. 8. Assignor hereby waives any defense by reason of the cessation from any cause whatsoever of the liability of Assignor to Lender or by reason of any disability. . 9. This Assignment is for the benefit and protection of Lender and Lender's successors and assigns and of no other parties. The Power of Attorney given herein is a power coupled with an interest and shall be irrevocable until repayment in full of the Loan. 10. This Assignment shall not impose upon Lender the obligation to exercise any of the foregoing rights and powers in any event, but such rights are granted to Lender solely for Lender's protection and benefit and may be exercised or not exercised upon a Triggering Event as hereinabove provided at Lender's sole and uncontrolled discretion. No failure to exercise any option, election or right of Lender provided hereunder shall operate to waive, release or in any way diminish the right of Lender to exercise or enforce any rights herein provided nor shall the exercise of any right hereunder operate as a waiver of any other right or remedy of Lender under the Loan Agreement or any document evidencing or securing the indebtedness of Assignor to Lender. 2 11. Should Lender employ legal counsel or bring an action at law or proceeding to enforce the terms hereof, Assignor shall pay all costs of suit and collection, including any and all attorneys' fees actually incurred by Lender. 12. All notices, requests, demands or other communications hereunder shall be in writing and shall be addressed to the addresses set forth above, or to such other address as either party may designate in writing. All notices hereunder shall be effective: (a} three (3} days after deposit in the U. S. Mail, postage prepaid, registered or certified mail, return receipt requested; (b) upon delivery, if delivered in person to the address set forth above; or (c) upon delivery, if sent by commercial express service, such as Federal Express; except that notices of change of address shall be effective ten {10) days after the effective date of all other notices hereunder. IN WITNESS WHEREOF, this Assignment has been executed as of the day of September, 2010. ASSIGNOR: Marano Mortuary and Cemetery Properties, LLC, an Arizona limited liability company By: Pahlmeyer, LLC, an Arizona limited liability company By: Robert A. Morken, III, Member By: The Matthew Scott Stiteler Revocable Trust, u/a d~at~ed 2/1 Member Matthew S. Stiteler, Trustee ACKNOWLEDGMENT AND CONSENT OF THE TOWN OF MARANA The TOWN OF MARANA, an Arizona municipal corporation ("Marana"), whose mailing address is 11555 W. Civic Center Drive, Marana, AZ 85653, is the a party to the Agreement referred to in the foregoing Assignment. The undersigned acknowledges and consents to the Assignment and agrees, upon the occurrence of a Triggering Event and the election of Lender as described in Section 3 of the Assignment, to allow Lender in Assignor's stead, all rights of Assignor under the Agreement and to render all acts and performances required by it to be made under the terms of the Agreement, directly to Lender or its nominee as Lender may direct. This Acknowledgment and Consent and the agreement of the undersigned contained herein is conditioned upon the following: {i) neither the Assignment nor this Acknowledgment and Consent shall give Lender any greater rights under the Agreement than those of Assignor, and (ii) upon the occurrence of an Event of Default and the election of Lender as described in Sections 2 and 3 of the Assignment, Lender will perform all of the obligations and agreements of Assignor under the Agreement. However, the undersigned understands that unless and until such Triggering Event and election by Lender, Lender has absolutely no obligation to perform the obligations and agreements of Assignor under the Agreement. The undersigned agrees to notify Lender in writing in the event of any breach by Assignor under the Agreement. EXECiTTED as of the ~ ~~ day of OG~der , 2010. THE TOWN OF MARANA, an Arizona municipal corporation /~..- By: Print Name: ~~~~~ 13~a ~~ Its: /Q~^ ~ ^~~~"'