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HomeMy WebLinkAbout07/11/2006 Blue Sheet Tangerine/Thornydale Development Agreement TOWN COUNCIL MEETING INFORMATION MEETING DATE: July 11, 2006 TOWN OF MARANA AGENDA ITEM: E.3 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: Resolution No. 2006-102: Relating to Development; approving and authorizing the execution of the TangerinelThornydale devel- opment agreement. DISCUSSION This development agreement accompanies the Tangerine/Thornydale Specific Plan, which was approved on July 5. This proposed development agreement simply grants protected development rights to the prop- erty which is the subject of the Tangerine/Thornydale Specific Plan for a period of four years (or for three years after the approval of a subdivision plat or development plan, if the approval oc- curs within the four-year protected development rights period) to allow the developer a reason- able opportunity to develop the property under the rules in effect as of the effective date of the Tangerine/Thornydale Specific Plan. As shown on the Specific Plan, the Tangerine/Thornydale development agreement requires the property to be developed with a maximum disturbance of 40%. RECOMMENDATION Staff recommends adoption of Resolution No. 2006-102, approving and authorizing the Mayor to execute the Tangerine/Thornydale development agreement. A TT ACHMENT(S) Tangerine/Thornydale Development Agreement SUGGESTED MOTION I move to adopt Resolution No. 2006-102. {00002307.DOC / 2} FJC/cds 7/3/06 MARANA RESOLUTION NO. 2006-102 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF THE T ANGERINE/THORNYDALE DEVELOPMENT AGREEMENT. WHEREAS, the Mayor and Council find that the terms and conditions of the Tangerine/Thornydale Development Agreement are in the best interest ofthe Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Tangerine/Thornydale Development Agreement 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 ofthe Town of Marana. BE IT FURTHER RESOLVED that the various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this resolution. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 11 th day of July, 2006. Mayor Ed Honea ATTEST: Jocelyn Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00002306.DOC I} FJClcds 713106 TANGERINE / TUORNYDALE 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 T ANGERINE/THORNYDALE, L.L.C., (the "Developer"). The Town and the Developer are collectively referred to in this Agreement as the "Parties," anyone of which is sometimes individually referred to as a "Party." RECITALS General Background A. The Developer has an option to purchase approximately 58.84 acres of land located in the Town limits, as depicted on the map attached as EXHIBIT A and legally described on EXHIBIT B (the "Property"). B. The Developer proposes to develop the western portion of the Property as a medium- density attached or detached home residential project with approximately 107 residential units and the eastern portion of the Property as an approximately seven-acre mixed-use commercial development (collectively, the "Project"). C. The Parties desire the Project to be developed in a manner consistent with the development regulations that now apply to the Property, as amplified and supplemented by this Agreement (the "Applicable Development Requirements"). D. The Town and the Developer acknowledge that the development of the Property pursuant to this Agreement will result in planning and economic benefits to the Town and its residents. E. The Developer has made and by this Agreement will continue to make a substantial commitment of resources for public and private improvements on the Property. F. The Parties understand and acknowledge that this Agreement is a "Development Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. S 9-500.05. Land Use Background G. The following are among the development regulations that apply to the Property: i) The Town of Marana Land Development Code (including the written rules, regulations, procedures, and other policies relating to development of land, whether adopted by the Mayor and Councilor by Town Staff) (collectively the "Land Development Code"), establishing, among other things, the type of land uses, location, density and intensity of such land uses, and community character of the Property, and providing for, among other things, the development of a variety of housing, commercial and recreation / open space opportunities. {00002318.DOC / 3} Town of Marana / Tangerine/Thomydale, L.L.C. / Wilson Family Trust Development Agreement ii) The Tangerine / Thornydale Specific Plan (PCZ-05151) adopted by the Town on July 5, 2006 by Ordinance No. 2006.20 (the "Specific Plan"). H. This Agreement is consistent with the portions of the Town's General Plan applicable to the Property. Development Impact Fees Background 1. The Town has adopted and may in the future amend certain development impact fees for roads, regional parks, water gravity storage, water renewable resources and water system infrastructure pursuant to A.R.S. ~ 9-463.05. J. The Property is not within the Town's water service area, and is therefore not subject to the Town's water gravity storage, water renewable resources and water system infrastructure development impact fees. K. The Developer will be entitled to credit pursuant to A.R.S. ~ 9-463.05(B)(3) toward the payment of the Town's adopted and future development impact fees based on the required dedication of lands and improvements for public regional parks and arterial roadways provided or to be provided by the Developer in connection with the development of the Project. L. The Parties desire to memorialize their agreement concerning the amount of the development impact fee credit applicable to the Project, based on anticipated developer-financed infrastructure. 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. Environmental Sensitivity and Site Disturbance 1.1. Site Disturbance Restriction. The Developer is entitled to disturb up to but shall disturb no more than 40% of the Property remaining after the dedication of Tangerine or Thornydale Roads (see paragraph 3.1 below). For purposes of this requirement, disturbed areas shall include, without limitation, any disturbance associated with emergency access, utilities, easements, onsite roadways, constructed drainageways, homesites, driveways, landscaping, or any other development activity that will occur or has already occurred on the Property. Town-approved unsurfaced pedestrian recreational trails within undisturbed natural open space areas shall not be considered disturbed areas for purposes of this requirement. If the Property is divided before undisturbed areas are identified and set aside in accordance with this Article, each individual parcel shall separately satisfy and account for the disturbance areas and undisturbed natural areas. 1.2. Identification of Undisturbed Areas. Before the issuance of any grading permit or other approval that would otherwise allow the Developer to remove vegetation from the Property, the Developer shall identify the portions of the Property anticipated to remain in their undisturbed natural state with such maps or other documentation as are reasonably acceptable to the Town. As development and development approvals occur for the Property, the specific locations of undisturbed natural areas, and the maps or other documentation associated with it, may be modified with the written reasonable consent of the Town, provided that the Developer shall at all times remain in compliance with paragraph 1.1 above. {OOO02318.DOC 13} 7/5/20064:45 PM Page 2 of 11 Town of Marana / Tangerine/Thomydale, L.L.C. / Wilson Family Trust Development Agreement 1.3. Protection of Undisturbed Areas During Construction. The Developer shall install 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 Developer shall comply with all Town grading requirements. 1.4. Permanent Maintenance of Undisturbed Natural Areas. With the exception of recreational trails constructed in undisturbed natural areas as provided in paragraph 1.1 above, undisturbed natural areas set aside as required by this Article shall be permanently maintained in their undisturbed natural state. 1.5. Ownership and Control of Undisturbed Natural Areas. Not later than when construction begins for each development plan or subdivision plat of the Property, the undisturbed natural areas set aside and maintained as required by this Article shall be placed in the permanent ownership and control of (i) one or more homeowners or owners associations established by declarations of restrictive covenants recorded over all or part of the Property or (ii) a government or conservation entity the Town reasonably determines is willing and able to permanently maintain the undisturbed natural areas as required by this Article. 1.6. Compliance with State and Federal Laws and Regulations. No approval, permit or authorization of the Town authorizes the Developer to violate any applicable federal or state laws or regulations, or relieves the 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 2. Development Plans. 2.1. Development Review. The Property shall be developed in a manner consistent with the Applicable Development Requirements, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for the Property. Upon the Developer's compliance with the Applicable Development Requirements, the Town agrees to issue such permits or approvals for the Property as may be requested by the Developer. 2.2. Archaeological/Historic Resources. Development of the Property shall meet all Town requirements set forth in Title 2 and Title 20 of the Land Development Code related to Archeological and Historic Resources. 2.3. 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 3. Infrastructure. 3.1. Right-of-Way Dedications. The Developer shall dedicate 125 feet of right-of-way for Tangerine Road and 45 feet of right-of-way for Thomydale Road, as shown in the Specific Plan. These right-of-way dedications shall be accomplished within one year after the Effective Date either by the recording of one or more subdivision plats showing the dedication or by separate instrument. 3.2. Water Utilities. Prior to the approval of the first final plat for the Property, the Developer shall prepare a Water Master Plan for the Property and shall enter into a Water Service Agreement with the City of Tucson Water Department ("Tucson Water") for potable and non- {00002318.DOC / 3} 7/5/20064:45 PM Page 3 of 11 Town of Marana / Tangerine/Thomydale, L.L.c. / Wilson Family Trust Development Agreement potable systems which sets for the various agreements of the Parties relating to, among other things, the interconnection and main extension from the existing water system, and the development, construction, dedication, ownership, and design of the water system, including necessary storage and welles) necessary to serve the Property. The Parties intend that Tucson Water will provide potable water service to the Property, and that Tucson Water will provide non-potable water service to the Property (through the non-potable water system constructed by the Developer and dedicated to Tucson Water). 3.3. Wastewater. The Developer shall construct the necessary on-site sewer collection and transmission system to serve the Property. The sewer system shall be in conformance with, and subject to, the requirements of Pima County Wastewater Management and the Town, and shall be designed and constructed at no cost to the Town. The Developer will construct any necessary off-site trunk sewer lines necessary to serve the Property. To the extent necessary, the Town agrees to grant approval for construction within the public right-of-way. 3.4. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the Property, the Developer shall have completed or shall provide evidence to the Town's satisfaction that Developer has made a diligent effort to complete the process of having the Property annexed into a fire district. Article 4. Cooperation and Alternative Dispute Resolution. 4.1. Appointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the Development, the Town and the Developer each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Developer. The initial representative for the Town (the "Town Representative") shall be the Planning Director, and the initial representative for the Developer shall be Mike Teufel or a replacement to be selected by the Developer. The representative shall be available at all reasonable times to discuss and review the performance of the Parties to this Agreement and the development of the Property. 4.2. Timing. The Town acknowledges the necessity for timely review by the Town of all plans and other materials (the "Submitted Materials") submitted by the Developer to the Town under this Agreement or pursuant to any zoning procedure, permit procedure, or other governmental procedure pertaining to the development of the Property and agrees to use its best efforts to accomplish such timely review of the Submitted Materials whenever possible. 4.3. 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 paragraph 7.1 below to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected. The Defaulting Party shall then have (i) 20 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) 30 days from the date of the notice to cure the default if action other than the payment of money is reasonable required, or if the non-monetary default cannot reasonably be cured within 30 days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within 30 days and thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration proceedings set forth in paragraphs 4.4 and 4.5 below. The Parties agree that due to the size, {OOO02318.00c 13} 7/5/20064:45 PM Page 4 of 11 Town of Marana / Tangerine/Thomydale, L.L.C./ Wilson Family Trust Development Agreement nature and scope of the project to be developed on the Property, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to Developer's development and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific performance will likely be appropriate for the 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. 4.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a 45 days moratorium. on arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by Developer and the Town. If the Parties cannot agree upon the selection of a mediator within seven days, then within three days thereafter the Town and the Developer shall request the presiding judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at least five years experience in mediating or arbitrating disputes relating to real estate development. The cost of any such mediation shall be divided equally between the Town and the Developer. The results of the mediation shall be non-binding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 4.5. Arbitration. After mediation (paragraph 4.4 above), an 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 rules of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. ~ 12-501 et seq., and judgment upon the award rendered may be entered in a court having jurisdiction. Article 5. Protected Development Rights. 5.1. General. To establish legally protected rights for the development of the Property in a manner consistent with the Applicable Development Requirements and to ensure reasonable certainty, stability and fairness to the Developer and the Town, the Developer and the Town agree that the Applicable Development Requirements shall remain in effect and shall not be changed for a period of four years after the execution of this Agreement without the written consent of the Developer. If a development plan or subdivision plat is approved within the four- year period, the Applicable Development Requirements for the approved development plan or subdivision plat shall remain in effect and shall not be changed for three years from the date of the development plan or subdivision plat approval without the written consent of the Developer. 5.2. Exceptions. As exceptions to the rights granted under paragraph 5.1 above, the Applicable Development Requirements may be modified to the extent necessary to: 5.2.1. comply with any state or federal laws or regulations, provided that if any such state or federal law or regulation prevents or precludes compliance with any provision of this Agreement, the affected provision shall be modified as necessary to comply with the state or federal law or regulation; or 5.2.2. alleviate or otherwise contain a legitimate, bona fide threat to the health or safety of the general public, in which event any ordinance, rule or regulation to be imposed in an {OOO02318.DOC / 3} 7/5/20064:45 PM Page 5 of 11 Town of Marana / Tangerine/Thomydale, L.L.C./ Wilson Family Trust Development Agreement effort to contain or alleviate the threat may be imposed only after public hearing and comment and shall not, in any event, be imposed arbitrarily. Article 6. Development Impact Fees and Credits 6.1. General provisions applicable to the determination of all development impact fees and credits. 6.1.1. Total Lots. One hundred seven total residential lots are anticipated to be constructed on the western portion of the Property in connection with the development of the Project. 6.1.2. Recalculation of Credits Based on Revised Lot Total. The development impact fee credits calculated in this Article 6 shall be recalculated based on the actual number of lots shown on final subdivision plats for the Project. 6.1.3. Actual Construction and Dedication as Condition of Credit. The credit against development impact fees calculated in accordance with this Article 6 shall apply only to the extent the Developer's construction and dedication or transfer of rights to the Town as anticipated in the calculation of the credit has been completed or is in progress to the reasonable satisfaction of the Town. 6.1.4. Administration of Credits. Development impact fee credits will be administered and applied to the Project as set forth in the applicable development impact fee ordinance or in Town regulations and policies adopted in connection with it. Development impact fee credits are currently divided equally among all lots in the development entitled to the credit. 6.1.5. Future Fee Revisions. If the Town amends its development impact fees applicable to the Project, the fee per lot shall be the then-applicable fee minus the credit per lot calculated for that particular fee. 6.1.6. Future Impact Fees. If the Town adopts an impact fee not addressed in this Article 6 for the same infrastructure for which Developer has contributed land or made improvements or paid a voluntary fee pursuant to this Agreement, Developer shall be entitled to a credit for those contributions as set forth in A.R.S. S 9-463.05, and the credit shall be calculated in a manner consistent with the development impact fee credits set forth in this Article 6. 6.2. Arterial Roadway Development Impact Fees and Credits. 6.2.1. No Current Fee. As of the date of this Agreement, the Town has not yet adopted a roadway development impact fee that applies to the Project, but it anticipates adopting one while this Agreement is in effect. 6.2.2. Right-of-Way Dedications. The Developer will be entitled to credits against the future arterial roadway development fee based on the value of the rights-of-way for Tangerine and Thornyda1e Roads dedicated by the Developer to the Town pursuant to paragraph 3.1 above. The amount of the credit is anticipated to be determined based on the right-of-way costs used in determining the amount of the arterial roadway development fee. 6.2.3. No Developer Arterial Roadway Construction. The Developer does not anticipate constructing any arterial roadway improvements in connection with the Project, and is therefore not anticipated to be entitled to a credit for construction. {00OO23I 8.DOC / 3} 7/5/20064:45 PM Page 6 of 11 Town of Marana / Tangerine/Thornydale, L.L.C. / Wilson Family Trust Development Agreement 6.3. Regional Park Development Impact Fees and Credits. 6.3.1. No Developer-Provided Regional Parks. The Developer does not anticipate constructing or providing any public regional parks in connection with the development of the Project, and is therefore not anticipated to be entitled to any credits against the Town's regional park development impact fee. 6.3.2. Current fee. As of the date of this Agreement, the Town's regional park development impact fee applicable to the Project is $3,028 per residential unit. Article 7. General Terms and Conditions. 7.1. Notices and filings. All notices, filing, consents, approvals and other communications provided for in or given in connection with this Agreement shall be validly given, filed, made, transmitted or served if in writing and delivered personally or sent by registered or certified United States mail, postage prepaid, if to (or such other addresses as any Party may from time to time designate in writing and deliver in a like manner): To the Town: Michael A. Reuwsaat, Town Manager TOWN OF Marana 11555 West Civic Center Drive, A3 Marana, AZ 85653 To the Developer: Mike Teufel T ANGERINE/THORNYDALE, L.L.c. 2751 North Campbell Avenue Tucson, AZ 85719 7.2. Term. After its execution by all Parties, this Agreement shall become effective upon the later of (i) the effective date of the Town Council resolution approving this Agreement, (ii) the effective date of the Specific Plan, or (iii) the date the Developer takes ownership of the Property (the "Effective Date"). However, this Agreement shall not become effective and shall have no force and effect if the Developer fails to take ownership of the Property within six months after the effective date of the Specific Plan. 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 tenth anniversary of the Effective Date. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. The Developer shall be entitled to terminate this Agreement if the Town materially impairs the development entitlements on the Property granted by this Agreement. 7.3. Waiver. No delay in exercising any right or remedy shall constitute a waiver ofthat right or remedy, and no waiver by the Town or the Developer 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. 7.4. Attorneys' 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 the jury. Nothing in the use {00OO2318.DOC /3} 7/5/20064:45 PM Page 7 of 11 Town of Marana / Tangerine/Thomydale, L.L.c. / Wilson Family Trust Development Agreement of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 4.5 above, requiring disputes to be resolved by binding arbitration. 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 counterparts 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 provisions of this Agreement. The Recitals set forth at the beginning of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here. 7.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. 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 revisions, and other necessary approvals relating to the development of the Property by the Developer and its successors. 7.9. Future Effect. 7.9.1. Time Essence and Successors. Time is of the essence of this 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 paragraph 7.9.2 below. 7.9.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate without the execution or recordation of any further document or instrument as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the end purchaser or user and thereupon such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement. 7.10. No Partnership and 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 between the Developer 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 such other person, firm, organization or corporation 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 reasonably requested or appropriate to evidence or give effect to the provisions of this Agreement. 7.12. Imposition of Dutv by Law. This Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. {00002318.DOC / 3} 7/5/20064:45 PM Page 8 of 11 Town of Marana / Tangerine/Thornydale, L.L.c. / Wilson Family Trust Development Agreement 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 superseded and merged in this Agreement. 7.14. Amendments to Agreement. No change or addition shall be made to this Agreement except by a written amendment executed by the Parties. The Parties agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in the Final Plat and Specific Plan as amended by this Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense of the Party requesting the amendment. 7.15. Names and Plans. The Developer shall be the sole owner of all names, titles, plans, drawings, specifications, ideas, programs, designs, and work products of every nature at any time developed, formulated or prepared by or at the instance of the Developer in connection with the Property or any plans; provided, however, that in connection with any conveyance of portions of the infrastructure as provided in this Agreement such rights pertaining to the portions of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to the appropriate governmental authority. 7.16. Good Standing~ Authority. The Developer 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 Developer that it is an Arizona municipal corporation with authority to enter into this Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 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 contractual 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 Developer 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 preceding sentence shall constitute a waiver of paragraph 4.5 above, requiring disputes to be resolved by binding arbitration. 7.19. Interpretation. This Agreement has been negotiated by the Town and the Developer, and no party shall be deemed to have drafted this Agreement for purposes of construing any portion of this Agreement for or against any party. 7.20. Recordation. The Town shall record this Agreement in its entirety in the office of the Pima County Recorder no later than ten days after it has been executed by the Town and the Developer. {00002318.DOC / 3} 7/5/20064:45 PM Page 9 of 11 Town of Marana / Tangerine/Thomydale, L.L.c. / Wilson Family Trust Development Agreement 7.21. No Developer Representations. Except as specifically set forth in this Agreement, nothing contained in this Agreement shall be deemed to obligate the Town or the Developer to complete any part or all of the development of the Property. 7.22. Approval. If any Party is required pursuant to this Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. 7.23. Force Maieure. If any Party shall be unable to observe or perform any covenant or condition of this Agreement by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Agreement so long as such Party shall use its best effort to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition causing such inability and such event or condition can be cured within a reasonable amount of time. "Force majeure," as used in this paragraph, means any condition or event not reasonably within the control of such party, including without limitation, "acts of God," strikes, lock-outs, or other disturbances of employer / employee relations; acts of public enemies; orders or restraints of any kind of government of the United States or any state thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of people; explosions; and partial or entire failure of utilities. Failure to settle strikes, lock-outs and other disturbances or employer / employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing Party or Parties, in either case when such course is in the judgment of and unfavorable to a Party shall not constitute failure to use its best efforts to remedy such a condition. 7.24. Conflict of Interest. This Agreement is subject to A.R.S. ~ 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] {OOOO2318.DOC 13} 7/5/20064:45 PM Page 10 of 11 Town of Marana / Tangerine/Thomydale, L.L.c. / Wilson Family Trust Development Agreement IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: DEVELOPER: THE TOWN OF MARANA, an Arizona municipal corporation T ANGERINE/THORNYDALE, L.L.c. By: Ed Honea, Mayor By: [Print Name] ItS: Date: Date: ATTEST: Jocelyn Bronson, Town Clerk ApPROVED AS TO FORM: Frank Cassidy, Town Attorney STATE OF ARIZONA ) : SS COUNTY OF PIMA ) The foregoing instrument was acknowledged before me on ~ ,u of Tangerine/Thorny dale, L.L.c., an Arizona limited liability corporation. , 2006, Notary Public {00002318.DOC 13} 7/5/20064:45 PM Page 11 of 11 Exhibit A: Legal Description Tangerine/Thornydale Specific Plan The South 1040 feet of the East half of Section 31 Township 11 South Range 13 East, Gila and Salt River Base and Meridian, Pima County, Arizona; , EXCEPT the East 30 feet lying within Thornydale Road as established by instrument recorded in Docket 1064 page 205, records of Pima County, Arizona; and EXCEPT the South 50 feet lying within Tangerine Road according .to Book 7 of Road Maps page 83, records of Pima County, Arizona; and EXCEPT any portion lying within Camino de Manana Road No. 220, according to Book 2 of Road Maps, Pages 1 to 4 Inclusive, records of Pima County, Arizona; and EXCEPT the triangular portion of land at the corner of Tangerine and Thornydale as described in Docket 12203 at page 6168 of the records of Pima County. ~--~ MARANA ~/ 1 '" TOWN OF MARANA Exhibit B Tangerinel Thornydale Specific Plan CASE NO. PCZ-05151 I~ ~~ ) W ERY ~I J I ,; / 1-1- _ 1,- '~v 1\ '\ L-- Ij '4 ~ By' 7 I--nMooreRd I I Q) u; OJ o Q) '0 o c 'f l\l (.) I I -i T ortolita V~tas ~ 'U a:: Q; .<: " 1ii '5 (5 l- t- I ~'\\I I I / J 7 ~jJ ~'V ~ /f i' Project ~ ~Site j/ ~ ~ I) r ~)~- K J~ Sonoran Preserve on the Bajada I--- Dove ountain k L-~ r I L I Tangerne Rd ! II rlih U .l~H! .b -= u.:yJ 'A -- Sky Ranch -'^- ~ tt jr ~V/ /~>-l,) I#~ I'~ The Town of Marana provides this map information' As is' at the request ~ or the user with the understanding that it is nol guaranteed to be accurate. correct or complete and condusions drawn from such information are the responsibility of the user, . ~ In no event shall the Town or Marana become liable to users or these data, or any other party, for any loss or direct. indirect. special, incidental or . 0 consequential damages, including but not 6mited to time, money, or goodwiU, arising from the use or moaolication of the data. I 00 0.2 0.4 Miles I A request for rezoning approximately 58.8 acres of land from "R-144" (Single Family Residential, 144,000 square foot minimum lot size) to "F" Specific Plan..