Loading...
HomeMy WebLinkAbout07/19/2011 Council Agenda Packet y! � � IIIIIMIIII +V YT MRAN Ya441''g4�P b7F MARANA TOWN COUNCIL REGULAR COUNCIL MEETING NOTICE AND AGENDA 11555 W. Civic Center Drive, Marana, Arizona 85653 Council Chambers, July 19, 2011, at or after 7:00 PM Ed Honea, Mayor Patti Comerford, Vice Mayor David Bowen, Council Member Herb Kai, Council Member Carol McGorray, Council Member Jon Post, Council Member Roxanne Ziegler, Council Member ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA. Revisions to the agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in italics. As a cou to others� turn_off_or but in silent m ode all page and cell phone M eeting Times Welcome to this Marana Council meeting. Regular Council meetings are usually held the first and third Tuesday of each month at 7:00 p.m. at the Marana Town Hall, although the date or time may change, or Special Meetings may be called at other times and/or places. Contact Town Hall or watch for posted agendas for other meetings. This agenda may be revised up to 24 hours prior to the meeting. In such a case a new agenda will be posted in place of this agenda. Speaking Meeting If you are interested in speaking to the Council during Call to the Public, Public Hearings, or other agenda items, you must fill out a speaker card (located in the lobby outside the Council Chambers) and deliver it to the Town Clerk prior to the convening of the meeting. All persons attending the Council meeting, whether speaking to the Council or not, are expected to observe the Council Rules, as well as the rules of politeness, propriety, decorum and good conduct. Any person interfering with the meeting in any way, or acting rudely or loudly will be removed from the meeting and will not be allowed to return. Accessibi To better serve the citizens of Marana and others attending our meetings, the Council Chambers are wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of special services as a result of their disability, such as assistive listening devices, agenda materials Regular Council Meeting - July 19, 2011 - Page 1 of 190 printed in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such special services are available upon prior request to the Town Clerk at least 10 working days prior to the Council meeting. Ag endas Copies of the agenda are available the day of the meeting in the lobby outside the Council Chambers or online at www.m.arana.com, by linking to the Town Clerk page under Agendas, Minutes and Ordinances. For questions about the Council meetings, special services or procedures, please contact the Town Clerk, at 382 -1999, Monday through Friday from 8:00 a.m. to 5:00 p.m. Posted no later than Monday, July 18, 2011, 7:00 PM, at the Marana Municipal Complex, the Marana Operations Center and at www.marana.com under Town Clerk, Agendas, Minutes and Ordinances. REGULAR COUNCIL MEETING CALL TO ORDER AND ROLL CALL PLEDGE OF ALLEGIANCE /INVOCATION /MOMENT OF SILENCE APPROVAL OF AGENDA CALL TO THE PUBLIC At this time any member of the public is allowed to address the Town Council on any issue not already on tonight's agenda. The speaker may have up to three minutes to speak. Any persons wishing to address the Council must complete a speaker card located outside the Council Chambers and deliver it to the Town Clerk prior to the commencement of the meeting. Individuals addressing a meeting at the call to the public will not be provided with electronic technology capabilities beyond the existing voice amplification and recording capabilities in the facilities and the town's overhead projector /document reader. Pursuant to the Arizona Open Meeting Law, at the conclusion of Call to the Public, individual members of the council may respond to criticism made by those who have addressed the Council, may ask staff to review the matter, or may ask that the matter be placed on a future agenda. PROCLAMATIONS MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS PRESENTATIONS CONSENT AGENDA The Consent Agenda contains items requiring action by the Council which are generally routine items not requiring Council discussion. A single motion will approve all items on the Consent agenda, including any resolutions or ordinances. A Council Member may remove any issue from the Consent agenda, and that issue will be discussed and voted upon separately, immediately following the Consent agenda. Regular Council Meeting - July 19, 2011 - Page 2 of 190 C 1: Or No. 2011.1 Relating to Transaction Privilege Tax; adopting the "2010 -2011 Amendments to the Tax Code of the Town of Marana" by reference; establishing an effective date; providing for severability and providing penalties for violations Resolu No. 2011 -71: Relating to Transaction Privilege Tax; declaring as a public record that certain document filed with the town clerk and entitled the "2010- 2011 Amendments to the Tax Code of the Town of Marana" (Erik Montague) C 2: Resolution No. 2011 -72: Relating to Economic Development; approving and authorizing the Mayor to execute a funding agreement with the Marana Chamber of Commerce, Inc., to support operation of a visitor center and provision of services to the Marana business community (Josh Wright) C3: Resolution No. 2 011 -7 3 Relating to Municipal Court; approving and authorizing the Mayor to execute an intergovernmental agreement with Pima County for payment for the incarceration of municipal prisoners (Cedric Hay) C 4: Resolution N 2011 -74: Relating to Utilities; approving and authorizing the Mayor to execute a purchase agreement between the town of Marana and Aqua Capital Management LP for the purchase of long term storage credits (Dorothy O'Brien) C5: Resolution N 2011 -75 _Relating to Personnel; approving and authorizing staff to implement the Vacation Sell -Back Program for fiscal year 2012 (Suzanne Machain) C 6: Minutes of the June 14 study session, June 21 regular meeting and the July 12 study session LIQUOR LICENSES L 1: Relating to Liquor Licenses; recommendation to the state liquor board regarding a New Series #4 (Wholesale) liquor license application submitted by Bryant S. West on behalf of Cordon Distributors located at 6260 N. Travel Center Drive, Ste K -3 BOARDS, COMMISSIONS AND COMMITTEES B 1: Resolution No. 201 1- 76__Relating to Boards, Commissions and Committees; approving the appointment of to the Marana Public Safety Personnel Retirement System local board (Jocelyn Bronson) B2: Resolution No. 2011 -77: Relating to Boards, Commissions and Committees; reappointing Annie Hoffman and Jack Noble to the Town of Marana Personnel Action Review Board (Suzanne Machain) COUNCIL ACTION A 1: Resolution No 2011 -78: Relating to Intergovernmental Relations; supporting the job creation and economic development opportunities associated with the proposed Rosemont Mine (Ed Honea) A 2: Ordinance No. 2 Relating to Development; approving and authorizing Regular Council Meeting - July 19, 2011 - Page 3 of 190 the Mayor to execute the Development Agreement for the Saguaro Bloom Development Project (Kevin Kish) ITEMS FOR DISCUSSION /POSSIBLE ACTION D 1: Le gislative /Intergovernmental Report: regarding all pending state and federal legislation and report on recent meetings of other legislative bodies (Gilbert Davidson) EXECUTIVE SESSIONS E 1: Executive Session pursuant to A.R.S. §38- 431.03 (A)(3), Council may ask for discussion or consultation for legal advice with the Town Attorney concerning any matter listed on this agenda. E 2: Executive Session pursuant to A.R.S. § 38- 431.03(A)(3),(4) and (7), discussion or consultation for legal advice with the Town's attorneys and discussion and to consider its position and instruct the Town Manager and staff concerning (1) the lawsuit entitled Town of Marana v. Pima County/Pima County v. Marana (consolidated), Maricopa County Superior Court No. CV2008- 001131, (2) pending legal issues, settlement discussions and contract negotiations relating to the transition of Marana wastewater collection and treatment to the Town of Marana E 3: Executive session pursuant to A.R.S. § 38- 431.03(A)(3) and (4), discussion or consultation with the town's attorneys for legal advice and to consider the town's position and instruct its attorneys regarding Marana's application for a Pima Association of Governments 208 amendment FUTURE AGENDA ITEMS Notwithstanding the mayor's discretion of what items to place on the agenda, if three or more council members request an item to be placed on the agenda, it must be placed upon the agenda for the second regular town council meeting after the date of the request ( Marana Town Code, Title 2, Chapter 2 -4, Section 2-4 -2 B) ADJOURNMENT Regular Council Meeting - July 19, 2011 - Page 4 of 190 MARA ire" 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item C 1 From: Erik Montague , Finance Director Strategic Plan Focus Area: Commerce Subject: Ordinance No. 2 to Transaction Privilege Tax; adopting the "2010- 2011 Amendments to the Tax Code of the Town of Marana" by reference; establishing an effective date; providing for severability and providing penalties for violations Resolution No. 2011 -71: Relating to Transaction Privilege Tax; declaring as a public record that certain document filed with the town clerk and entitled the "2010 -2011 Amendments to the Tax Code of the Town of Marana" Discussion: The League of Arizona Cities and Towns has forwarded the 2011 amendments to the Model Cities Tax Code for the Town of Marana. The amendments are items, that when adopted, will bring the Town Tax Code into conformance with State law. Following each legislative session, Arizona cities and towns, through the Unified Audit Committee (UAC), review new state laws to determine areas of the Model City Tax Code that require adjustment to maintain conformity with state law. As the UAC prepares and approves tax code changes they are forwarded to the business community for comment, and then to the Municipal Tax Code Commission for final approval before presenting them to town councils for adoption. Some of the changes include: 1. The modification of the definitions of "food" and "prosthetic" and the creation a new definition for "medical marijuana ". These changes were made to clearly exclude medical marijuana from the listing of items exempt from retail sales tax. 2. Extending the contracting transaction privilege tax exemption for solar energy devices sunset date from January 1, 2011 to January 1, 2017. 3. The prohibition of taxing commercial rentals between two corporations when either the landlord or lessor corporation owns at least 80% of the voting stock of the other corporation. 4. Changes to the treatment of successor privilege tax liability in the event of foreclosure. The change allows for the deferral of payment of the delinquent tax until after the sale of the property. 5. The creation of a tax exemption for school districts and charter schools for the storage, use or Regular Council Meeting - July 19, 2011 - Page 5 of 190 consumption of tangible personal property by a school district or charter school. A brief summary of these changes is attached to this item. Arizona State law allows cities and towns to enact the provisions of a code or amendment to the code without publishing the entire code (ARS § 9 -802). The law does require that three copies of the code shall be filed in the office of the Town Clerk and made available for public use and inspection. The attached resolution will establish "The 2010 -11 Amendments to the Tax Code of the Town of Marana" as a public record and direct the Town Clerk to maintain three copies on file. By adopting the amendments by reference, it will save the Town from publishing the numerous pages of amendments in the newspaper. Financial Impact: The changes allowing medical marijuana to be taxed will increase retail sales taxes should the sales occur within the Town. The remaining items will likely reduce the amount of sales taxes received. However, due to the complexities associated with these activities, the total annual impact on tax collections is not known. ATTACHMENTS: Name: Description: Type: L-1 Ord inance_adopting _2010- 11_Tax_Code_amendments_ (00027138). DOC Ordinance Ordinance ❑ Reso _declaring_tax_code_amendments_a _public record (00027140).DOC Resolution Resolution O 2010-1 1 Tax Code Amendments_(00027141).DOC Exhibit Exhibit O 2010 -2011 Tax Code_ Amendments Summary of Tax Changes Backup Material Staff Recommendation: Staff recommends approval of Ordinance No. 2011.17; adopting the 2011 Amendments to the Tax Code of the Town of Marana and Resolution No. 2011 -71; declaring the amendments to be a public record. Suggested Motion: I move to adopt Ordinance No. 2011.17; adopting the 2011 Amendments to the Tax Code of the Town of Marana and Resolution No. 2011 -71; declaring the amendments a public record. Regular Council Meeting - July 19, 2011 - Page 6 of 190 MARANA ORDINANCE NO. 2011.17 RELATING TO TRANSACTION PRIVILEGE TAX; ADOPTING THE "2010 -2011 AMENDMENTS TO THE TAX CODE OF THE TOWN OF MARANA" BY REFERENCE; ESTABLISHING AN EFFECTIVE DATE; PROVIDING FOR SEVERABILITY AND PROVIDING PENALTIES FOR VIOLATIONS BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA: SECTION 1 : That certain document known as the "2010 -2011 Amendments to the Tax Code of the Town of Marana," three copies of which are on file in the office of the town clerk of the Town of Marana, Arizona, which document was made a public record by and attached as Exhibit A to Resolution No. 2011 -71 of the Town of Marana, Arizona, is hereby referred to, adopted and made a part hereof as if fully set out in this ordinance. SECTION 2 : Any person found guilty of violating any provision of these amendments to the tax code shall be guilty of a class one misdemeanor. Each day that a violation continues shall be a separate offense punishable as herein above described. SECTION 3 : If any section, subsection, sentence, clause, phrase or portion of this ordinance or any part of these amendments to the tax code adopted herein by reference is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof. SECTION 4 : The provisions of section 1 of this ordinance shall be effective from and after June 1, 2011. The provisions of section 2 through 5 of this ordinance shall be effective from and after July 29, 2010. The provisions of section 6 of this ordinance shall be effective from and after May, 1 2010. The provisions of section 7 of this ordinance shall be effective from and after September 30, 2009. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19`" day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 7 of 190 {00027138.DOC /} MARANA RESOLUTION NO. 2011-71 RELATING TO TRANSACTION PRIVILEGE TAX; DECLARING AS A PUBLIC RECORD THAT CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED THE "2010 -2011 AMENDMENTS TO THE TAX CODE OF THE TOWN OF MARANA." BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA: THAT certain document entitled the "2010 -2011 AMENDMENTS TO THE TAX CODE OF THE TOWN OF MARANA," a copy of which is attached to and incorporated in this resolution as Exhibit A and three copies of which are on file in the office of the town clerk, is hereby declared to be a public record, and said copies are ordered to remain on file with the town clerk. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19` day of July, 2011. Mayor Ed Honea ATTEST: Jocelyn Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney Regul jb @M�t fAWipg - July 19, 2011 - Page 8 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 2010 -2011 AMENDMENTS TO THE TAX CODE OF THE TOWN OF MARANA Section 1. Section 8 -100 of the Tax Code of the Town of Marana is amended to read: Sec. 8 -100. General definitions. For the purposes of this Chapter, the following definitions apply: " Assembler " means a person who unites or combines products, wares, or articles of manufacture so as to produce a change in form or substance of such items without changing or altering component parts. " Broker " means any person engaged or continuing in business who acts for another for a consideration in the conduct of a business activity taxable under this Chapter, and who receives for his principal all or part of the gross income from the taxable activity. " Business " means all activities or acts, personal or corporate, engaged in and caused to be engaged in with the object of gain, benefit, or advantage, either direct or indirect, but not casual activities or sales. " Business Dav means any day of the week when the Tax Collector's office is open for the public to conduct the Tax Collector's business. " Casual Activity or Sale means a transaction of an isolated nature made by a person who neither represents himself to be nor is engaged in a business subject to a tax imposed by this Chapter. However, no sale, rental, license for use, or lease transaction concerning real property nor any activity entered into by a business taxable by this Chapter shall be treated, or be exempt, as casual. This definition shall include sales of used capital assets, provided that the volume and frequency of such sales do not indicate that the seller regularly engages in selling such property. " Combined Taxes means the sum of all applicable Arizona Transaction Privilege and Use Taxes; all applicable transportation taxes imposed upon gross income by this County as authorized by Article III, Chapter 6, Title 42, Arizona Revised Statutes; and all applicable taxes imposed by this Chapter. " Commercial Property is any real property, or portion of such property, used for any purpose other than lodging or lodging space, including structures built for lodging but used otherwise, such as model homes, apartments used as offices, etc. " Communications Channel means any line, wire, cable, microwave, radio signal, light beam, telephone, telegraph, or any other electromagnetic means of moving a message. " Construction Contracting refers to the activity of a construction contractor. " Construction Contractor means a person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck, or demolish any building, highway, road, railroad, excavation, or other structure, project, development, or improvement to real property, or to do any part thereof. "Construction contractor" includes subcontractors, specialty contractors, prime contractors, and any person receiving consideration for the general supervision and /or coordination of such a construction {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 9 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 project except for remediation contracting. This definition shall govern without regard to whether or not the construction contractor is acting in fulfillment of a contract. " Delivery (of Notice) by the Tax Collector means "receipt (of notice) by the taxpayer ". " Delivery, Installation, or Other Direct Customer Services means services or labor, excluding repair labor, provided by a taxpayer to or for his customer at the time of transfer of tangible personal property; provided further that the charge for such labor or service is separately billed to the customer and maintained separately in the taxpayer's books and records. " Engaging ", when used with reference to engaging or continuing in business, includes the exercise of corporate or franchise powers. " Equivalent Excise Tax means either: a Privilege or Use Tax levied by another Arizona municipality upon the transaction in question, and paid either to such Arizona municipality directly or to the vendor; or an excise tax levied by a political subdivision of a state other than Arizona upon the transaction in question, and paid either to such jurisdiction directly or to the vendor; or an excise tax levied by a Native American Government organized under the laws of the federal government upon the transaction in question, and paid either to such jurisdiction directly or to the vendor. " Federal Government means the United States Government, its departments and agencies; but not including national banks or federally chartered or insured banks, savings and loan institutions, or credit unions. " Food " means any items intended for human consumption as defined by rules and regulations adopted by the Department of Revenue, State of Arizona, pursuant to A.R.S. Section 42 -5106. Under no circumstances shall "food" include alcoholic beverages or tobacco, or food items purchased for use in conversion to any form of alcohol by distillation, fermentation, brewing, or other process t NDER ` O CIRCt NISI F LA CES SI I: L L '°FOODL ' INC IID A EDIBI, PRC: MJCT'. 131 >V1,K ANY WAY COMBINED WITI I MEDIC AL J %4AR1JIJANA OR AN ACTIVE INCiREDIENT OF MIC.AL NI JARIJIJANA. " Hotel " means any public or private hotel, inn, hostelry, tourist home, house, motel, rooming house, apartment house, trailer, or other lodging place within the Town offering lodging, wherein the owner thereof, for compensation, furnishes lodging to any transient, except foster homes, rest homes, sheltered care homes, nursing homes, or primary health care facilities. " Job Printing means the activity of copying or reproducing an article by any means, process, or method. "Job printing" includes engraving of printing plates, embossing, copying, micrographics, and photo reproduction. (00027141.DOC /} Regular Council Meeting -July 19, 2011 -Page 10 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 " Lessee " includes the equivalent person in a rental or licensing agreement for all purposes of this Chapter. " Lessor " includes the equivalent person in a rental or licensing agreement for all purposes of this Chapter. " Licensing (for Use) means any agreement between the user ( "licensee ") and the owner or the owner's agent ( "licensor ") for the use of the licensor's property whereby the licensor receives consideration, where such agreement does not qualify as a "sale" or "lease" or "rental" agreement. " Lodging (g_ Lod ig ng Space) means any room or apartment in a hotel or any other provider of rooms, trailer spaces, or other residential dwelling spaces; or the furnishings or services and accommodations accompanying the use and possession of said dwelling space, including storage or parking space for the property of said tenant. " Manufactured Buildings means a manufactured home, mobile home or factory built building, as defined in A.R.S. Section 41 -2142. " Manufacturer " means a person engaged or continuing in the business of fabricating, producing, or manufacturing products, wares, or articles for use from other forms of tangible personal property, imparting to such new forms, qualities, properties, and combinations. MEDICAI_, iNJARIJC AN EANS ` MARIJUANA i 1SED FOR A "MEDICAL !JSE" . 'I HOST ERMS ARE DEFINED 1N .AJZ S .SE 1_. QN 6- 2801. " Mining and Metallurgical Supplies means all tangible personal property acquired by persons engaged in activities defined in Section 8 -432 for such use. This definition shall not include: janitorial equipment and supplies. office equipment, office furniture, and office supplies. motor vehicles licensed for use upon the highways of the State. " Modifier " means a person who reworks, changes, or adds to products, wares, or articles of manufacture. " Nonprofit Entity means any entity organized and operated exclusively for charitable purposes, or operated by the Federal Government, the State, or any political subdivision of the State. " Occupancy (of Real Property) means any occupancy or use, or any right to occupy or use, real property including any improvements, rights, or interests in such property. (00027141.DOC /) Regular Council Meeting - July 19, 2011 - Page 11 of 190 it EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 " Out -of -Town Sale means the sale of tangible personal property and job printing if all of the following occur: transference of title and possession occur without the Town; and the stock from which such personal property was taken was not within the corporate limits of the Town; and the order is received at a permanent business location of the seller located outside the Town; which location is used for the substantial and regular conduct of such business sales activity. In no event shall the place of business of the buyer be determinative of the situs of the receipt of the order. For the purpose of this definition it does not matter that all other indicia of business occur within the Town, including, but not limited to, accounting, invoicing, payments, centralized purchasing, and supply to out -of -Town storehouses and out -of -Town retail branch outlets from a primary storehouse within the Town. " Out -of -State Sale means the sale of tangible personal property and job printing if all of the following occur: The order is placed from without the State of Arizona; and the property is delivered to the buyer at a location outside the State; and the property is purchased for use outside the State. " Owner- Builder means an owner or lessor of real property who, by himself or by or through others, constructs or has constructed or reconstructs or has reconstructed any improvement to real property. " Person " means an individual, firm, partnership, joint venture, association, corporation, estate, trust, receiver, syndicate, broker, the Federal Government, this State, or any political subdivision or agency of this State. For the purposes of this Chapter, a person shall be considered a distinct and separate person from any general or limited partnership or joint venture or other association with which such person is affiliated. A subsidiary corporation shall be considered a separate person from its parent corporation for purposes of taxation of transactions with its parent corporation. " Prosthetic " means any of the following tangible personal property if such items are prescribed or recommended by a licensed podiatrist, chiropractor, dentist, physician or surgeon, naturopath, optometrist, osteopathic physician or surgeon, psychologist, hearing aid dispenser, physician assistant, nurse practitioner or veterinarian: {00027141-DOC /} Regular Council Meeting - July 19, 2011 - Page 12 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 any man -made device for support or replacement of a part of the body, or to increase acuity of one of the senses. Such items include: prescription eyeglasses; contact lenses; hearing aids; artificial limbs or teeth; neck, back, arm, leg, or similar braces. insulin, insulin syringes, and glucose test strips sold with or without a prescription. hospital beds, crutches, wheelchairs, similar home health aids, or corrective shoes. drugs or medicine, including oxygen. equipment used to generate, monitor, or provide health support systems, such as respiratory equipment, oxygen concentrator, dialysis machine. durable medical equipment which has a Federal Health Care Financing Administration common procedure code, is designated reimbursable by Medicare, can withstand repeated use, is primarily and customarily used to serve a medical purpose, is generally not useful to a person in the absence of illness or injury and is appropriate for use in the home. {7I 1. ,NDER ` (LC. I RC t I /1STA''(;1_S S HALL ` °I'ROST II I'IC I"�CL t, )I✓ Ml .DICAL __.� MARI.It.'ANA l (: A l._ Q WI 11_'I'l I1�R IT IS SOLD O DISPENSED KiRM ANT TO A P RE1SCRIP'I'ION, R CO M1 N1)A OR WRITT N CERTIFICATION BY .ANY At.i }I _l: ED PERSON, " Qualifying Community Health Center (1) means an entity that is recognized as nonprofit under Section 501(c)(3) of the United States Internal Revenue Code, that is a community- based, primary care clinic that has a community -based board of directors and that is either: (a) the sole provider of primary care in the community. (b) a nonhospital affiliated clinic that is located in a federally designated medically underserved area in this State. (2) includes clinics that are being constructed as qualifying community health centers. " Qualifying Health Care Organization means an entity that is recognized as nonprofit under Section 501(c) of the United States Internal Revenue Code and that uses, saves or invests at least eighty percent (80 %) of all monies that it receives from all sources each year only for health and medical related educational and charitable services, as documented by annual financial audits prepared by an independent certified public accountant, performed according to generally accepted accounting standards and filed annually with the Arizona Department of Revenue. Monies that are used, saved or invested to lease, purchase or construct a facility for health and medical related education and charitable services are included in the eighty percent (80 %) requirement. 100027141.DOC /) Regular Council Meeting - July 19, 2011 - Page 13 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 " Qualifying Hospital means any of the following: a licensed hospital which is organized and operated exclusively for charitable purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual. a licensed nursing care institution or a licensed residential care institution or a residential care facility operated in conjunction with a licensed nursing care institution or a licensed kidney dialysis center, which provides medical services, nursing services or health related services and is not used or held for profit. a hospital, nursing care institution or residential care institution which is operated by the federal government, this State or a political subdivision of this State. a facility that is under construction and that on completion will be a facility under subdivision (1), (2) or (3) of this paragraph. " Receipt (of Notice) by the Taxpayer means the earlier of actual receipt or the first attempted delivery by certified United States mail to the taxpayer's address of record with the Tax Collector. " Remediation " means those actions that are reasonable, necessary, cost - effective and technically feasible in the event of the release or threat of release of hazardous substances into the environment such that the waters of the State are or may be affected, such actions as may be necessary to monitor, assess and evaluate such release or threat of release, actions of remediation, removal or disposal of hazardous substances or taking such other actions as may be necessary to prevent, minimize or mitigate damage to the public health or welfare or to the waters of the State which may otherwise result from a release or threat of release of a hazardous substance that will or may affect the waters of the State. Remediation activities include the use of biostimulation with indigenous microbes and bioaugmentation using microbes that are nonpathogenic, nonopportunistic and that are naturally occurring. Remediation activities may include community information and participation costs and providing an alternative drinking water supply. " Rental Equipment means tangible personal property sold, rented, leased, or licensed to customers to the extent that the item is actually used by the customer for rental, lease, or license to others; provided that: the vendee is regularly engaged in the business of renting, leasing, or licensing such property for a consideration; and the item so claimed as "rental equipment" is not used by the person claiming the exemption for any purpose other than rental, lease, or license for compensation, to an extent greater than fifteen percent (15 %) of its actual use. {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 14 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 " Rental Supply means an expendable or nonexpendable repair or replacement part sold to become part of "rental equipment ", provided that: the documentation relating to each purchased item so claimed specifically itemizes to the vendor the actual item of "rental equipment" to which the purchased item is intended to be attached as a repair or replacement part; and the vendee is regularly engaged in the business of renting, leasing, or licensing such property for a consideration; and the item so claimed as "rental equipment" is not used by the person claiming the exemption for any purpose other than rental, lease, or license for compensation, to an extent greater than fifteen percent (15 %) of its actual use. " Repairer " means a person who restores or renews products, wares, or articles of manufacture. " Resides within the Town means in cases other than individuals, whose legal addresses are determinative of residence, the engaging, continuing, or conducting of regular business activity within the Town. " Restaurant " means any business activity where articles of food, drink, or condiment are customarily prepared or served to patrons for consumption on or off the premises, also including bars, cocktail lounges, the dining rooms of hotels, and all caterers. For the purposes of this Chapter, a "fast food" business, which includes street vendors and mobile vendors selling in public areas or at entertainment or sports or similar events, who prepares or sells food or drink for consumption on or off the premises is considered a "restaurant ", and not a "retailer ". " Retail Sale (Sale at Retail) means the sale of tangible personal property, except the sale of tangible personal property to a person regularly engaged in the business of selling such property. " Retailer " means any person engaged or continuing in the business of sales of tangible personal property at retail. " Sale " means any transfer of title or possession, or both, exchange, barter, conditional or otherwise, in any manner or by any means whatsoever, including consignment transactions and auctions, of property for a consideration. "Sale" includes any transaction whereby the possession of such property is transferred but the seller retains the title as security for the payment of the price. "Sale" also includes the fabrication of tangible personal property for consumers who, in whole or in part, furnish either directly or indirectly the materials used in such fabrication work. " Solar Dayli;;hting means a device that is specifically designed to capture and redirect the visible portion of the solar beam, while controlling the infrared portion, for use in illuminating interior building spaces in lieu of artificial lighting. (00027141.DOC /) Regular Council Meeting - July 19, 2011 - Page 15 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 " Solar Energy Device means a system or series of mechanisms designed primarily to provide heating, to provide cooling, to produce electrical power, to produce mechanical power, to provide solar daylighting or to provide any combination of the foregoing by means of collecting and transferring solar generated energy into such uses either by active or passive means, including wind generator systems that produce electricity. Solar energy systems may also have the capability of storing solar energy for future use. Passive systems shall clearly be designed as a solar energy device, such as a trombe wall, and not merely as a part of a normal structure, such as a window. " Speculative Builder means either: an owner - builder who sells or contracts to sell, at any tilde, improved real property (as provided in Section 8 -416) consisting of: . a)_custom, model, or inventory homes, regardless of the stage of completion of such homes; or P4ki) residential or commercial lots without a structure; or (2) an owner - builder who sells or contracts to sell improved real property, other than improved real property specified in subsection (1) above: pia prior to completion; or before the expiration of twenty -four (24) months after the improvements of the real property sold are substantially complete. " Substantially Complete means the construction contracting or reconstruction contracting: has passed final inspection or its equivalent; or certificate of occupancy or its equivalent has been issued; or is ready for immediate occupancy or use. " Supplier " means any person who rents, leases, licenses, or makes sales of tangible personal property within the Town, either directly to the consumer or customer or to wholesalers, jobbers, fabricators, manufacturers, modifiers, assemblers, repairers, or those engaged in the business of providing services which involve the use, sale, rental, lease, or license of tangible personal property. " Tax Collector means the Town Manager or his designee or agent for all purposes under this Chapter. " Taxpayer " means any person liable for any tax under this Chapter. {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 16 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 " Taxpayer Problem Resolution Officer means the individual designated by the Town to perform the duties identified in Sections 8 -515 and 8 -516. In cities with a population of 50,000 or more, the Taxpayer Problem Resolution Officer shall be an employee of the Town. In cities with a population of less than 50,000, the Taxpayer Problem Resolution Officer need not be an employee of the Town. Regardless of whether the Taxpayer Problem Resolution Officer is or is not an employee of the Town, the Taxpayer Problem Resolution Officer shall have substantive knowledge of taxation. The identity of and telephone number for the Taxpayer Problem Resolution Officer can be obtained from the Tax Collector. " Telecommunication Service means any service or activity connected with the transmission or relay of sound, visual image, data, information, images, or material over a communications channel or any combination of communications channels. " Transient " means any person who either at the person's own expense or at the expense of another obtains lodging space or the use of lodging space on a daily or weekly basis, or on any other basis for less than thirty (30) consecutive days. " Utility Service means the producing, providing, or furnishing of electricity, electric lights, current, power, gas (natural or artificial), or water to consumers or ratepayers Section 2. Section 8 -415 of the Tax Code of the Town of Marana is amended to read: Sec. 8 -415. Construction contracting: construction contractors. (a) The tax rate shall be at an amount equal to four percent (4 %) of the gross income from the business upon every construction contractor engaging or continuing in the business activity of construction contracting within the Town. (1) However, gross income from construction contracting shall not include charges related to groundwater measuring devices required by A.R.S. Section 45- 604. (2) (Reserved) (3) gross income from construction contracting shall not include gross income from the sale of manufactured buildings taxable under Section 8 -427. (4) For taxable periods beginning from and after July 1, 2008, the portion of gross proceeds of sales or gross income attributable to the actual direct costs of providing architectural or engineering services that are incorporated in a contract is not subject to tax under this Section. For the purposes of this subsection, "direct costs" means the portion of the actual costs that are directly expended in providing architectural or engineering services. (b) Deductions and exemptions (1) Gross income derived from acting as a "subcontractor" shall be exempt from the tax imposed by this Section. (2) All construction contracting gross income subject to the tax and not deductible {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 17 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 herein shall be allowed a deduction of thirty-five percent (35 %). (3) The gross proceeds of sales or gross income attributable to the purchase of machinery, equipment or other tangible personal property that is exempt from or deductible from privilege or use tax under: (A) Section 8 -465, subsections (g) and (p) (B) Section 8 -660, subsections (g) and (p) shall be exempt or deductible, respectively, from the tax imposed by this Section. (4) The gross proceeds of sales or gross income that is derived from a contract entered into for the installation, assembly, repair or maintenance of income - producing capital equipment, as defined in Section 8 -110, that is deducted from the retail classification pursuant to Section 8465(g), that does not become a permanent attachment to a building, highway, road, railroad, excavation or manufactured building or other structure, project, development or improvement shall be exempt from the tax imposed by this Section. If the ownership of the realty is separate from the ownership of the income - producing capital equipment, the determination as to permanent attachment shall be made as if the ownership was the same. The deduction provided in this paragraph does not include gross proceeds of sales or gross income from that portion of any contracting activity which consists of the development of, or modification to, real property in order to facilitate the installation, assembly, repair, maintenance or removal of the income - producing capital equipment. For purposes of this paragraph, "permanent attachment" means at least one of the following: (A) to be incorporated into real property. (B) to become so affixed to real property that it becomes part of the real property. (C) to be so attached to real property that removal would cause substantial damage to the real property from which it is removed. (5) The gross proceeds of sales or gross income received from a contract for the construction of an environmentally controlled facility for the raising of poultry for the production of eggs and the sorting, or cooling and packaging of eggs shall be exempt from the tax imposed under this Section. (6) The gross proceeds of sales or gross income that is derived from the installation, assembly, repair or maintenance of cleanrooms that are deducted from the tax base of the retail classification pursuant to Section 8 -465, subsection (g) shall be exempt from the tax imposed under this Section. (7) The gross proceeds of sales or gross income that is derived from a contract entered into with a person who is engaged in the commercial production of livestock, livestock products or agricultural, horticultural, viticultural or floricultural crops or products in this State for the construction, alteration, repair, improvement, movement, wrecking or demolition or addition to or subtraction from any building, highway, road, excavation, manufactured building or other structure, project, development or improvement used directly and primarily to prevent, monitor, control or reduce air, water or land pollution shall be exempt from the tax imposed under this Section. {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 18 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 (8) The gross proceeds of sales or gross income received from a post construction contract to perform post- construction treatment of real property for termite and general pest control, including wood destroying organisms, shall be exempt from tax imposed under this section. (9) Through December 31, 2009, the gross proceeds of sales or gross income received from a contract for constructing any lake facility development in a commercial enhancement reuse district that is designated pursuant to A.R.S. § 9- 499.08 if the contractor maintains the following records in a form satisfactory to the Arizona Department of Revenue and to the Town: (A) The certificate of qualification of the lake facility development issued by the Town pursuant to A.R.S. § 9- 499.08, subsection D. (B) All state and local transaction privilege tax returns for the period of time during which the contractor received gross proceeds of sales or gross income from a contract to construct a lake facility development in a designated commercial enhancement reuse district, showing the amount exempted from state and local taxation. (C) Any other information considered to be necessary. (10) Any amount attributable to development fees that are incurred in relation to the construction, development or improvement of real property and paid by the taxpayer as defined in the model city tax code or by a contractor providing services to the taxpayer. For the purposes of this paragraph: (A) the attributable amount shall not exceed the value of the development fees actually imposed. (B) the attributable amount is equal to the total amount of development fees paid by the taxpayer or by a contractor providing services to the taxpayer and the total development fees credited in exchange for the construction of, contribution to or dedication of real property for providing public infrastructure, public safety or other public services necessary to the development. The real property must be the subject of the development fees. (C) "development fees" means fees imposed to offset capital costs of providing public infrastructure, public safety or other public services to a development and authorized pursuant to A.R.S. Section 9- 463.05, A KS . Section 11 -1102 or A.I.S. Title 48 regardless of the jurisdiction to which the fees are paid. (11) For taxable periods beginning from and after July 1, 2008 and ending before January 1, 2017, the gross proceeds of sales or gross income derived from a contract to provide and install a solar energy device. The contractor shall register with the department of revenue as a solar energy contractor. By registering, the contractor acknowledges that it will make its books and records relating to sales of solar energy devices available to the department of revenue and the Town, as applicable, for examination. (c) " Subcontractor " means a construction contractor performing work for either: {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 19 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 (1) a construction contractor who has provided the subcontractor with a written declaration that he is liable for the tax for the project and has provided the subcontractor his Town Privilege License number. (2) an owner - builder who has provided the subcontractor with a written declaration that: (A) the owner - builder is improving the property for sale; and (B) the owner- builder is liable for the tax for such construction contracting activity; and (C) the owner - builder has provided the contractor his Town Privilege License number. (3) a person selling new manufactured buildings who has provided the subcontractor with a written declaration that he is liable for the tax for the site preparation and set -up; and provided the subcontractor his Town Privilege License number. Subcontractor also includes a construction contractor performing work for another subcontractor as defined above. Section 3. Section 8 -416 of the Tax Code of the Town of Marana is amended to read: Sec. 8 -416. Construction contracting: speculative builders. (a) The tax shall be equal to four percent (4 %) of the gross income from the business activity upon every person engaging or continuing in business as a speculative builder within the Town. (1) The gross income of a speculative builder considered taxable shall include the total selling price from the sale of improved real property at the time of closing of escrow or transfer of title. (2) " Improved Real Property means any real property: (A) upon which a structure has been constructed; or (B) where improvements have been made to land containing no structure (such as paving or landscaping); or (C) which has been reconstructed as provided by Regulation; or (D) where water, power, and streets have been constructed to the property line. (3) " Sale of Improved Real Propert y " includes any form of transaction, whether characterized as a lease or otherwise, which in substance is a transfer of title of, or equitable ownership in, improved real property and includes any lease of the property for a term of thirty (30) years or more (with all options for renewal being included as a part of the term). In the case of multiple unit projects, "sale" refers to the sale of the entire project or to the sale of any individual parcel or unit. (4) " Partially Improved Residential Real Property ", as used in this Section, means any improved real property, as defined in subsection (a)(2) above, being developed for sale to individual homeowners, where the construction of the residence upon such property is not substantially complete at the time of the sale. (b) Exclusions 100027141.DOC /) Regular Council Meeting - July 19, 2011 - Page 20 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 (1) In cases involving reconstruction contracting, the speculative builder may exclude from gross income the prior value allowed for reconstruction contracting in determining his taxable gross income, as provided by Regulation. (2) Neither the cost nor the fair market value of the land which constitutes part of the improved real property sold may be excluded or deducted from gross income subject to the tax imposed by this Section. (3) (Reserved) (4) A speculative builder may exclude gross income from the sale of partially improved residential real property as defined in (a)(4) above to another speculative builder only if all of the following conditions are satisfied: (A) The speculative builder purchasing the partially improved residential real property has a valid Town privilege license for construction contracting as a speculative builder; and (B) At the time of the transaction the purchaser provides the seller with a properly completed written declaration that the purchaser assumes liability for and will pay all privilege taxes which would otherwise be due the Town at the time of sale of the partially improved residential real property; and (C) The seller also: (i) maintains proper records of such transactions in a manner similar to the requirements provided in this chapter relating to sales for resale; and (ii) retains a copy of the written declaration provided by the buyer for the transaction; and (iii) is properly licensed with the Town as a speculative builder and provides the Town with the written declaration attached to the Town privilege tax return where he claims the exclusion. (5) For taxable periods beginning from and after July 1, 2008, the portion of gross proceeds of sales or gross income attributable to the actual direct costs of providing architectural or engineering services that are incorporated in a contract is not subject to tax under this section. For the purposes of this subsection, "direct costs" means the portion of the actual costs that are directly expended in providing architectural or engineering services. (c) Tax liability for speculative builders occurs at close of escrow or transfer of title, whichever occurs earlier, and is subject to the following provisions, relating to exemptions, deductions and tax credits: (1) Exemptions (A) The gross proceeds of sales or gross income attributable to the purchase of machinery, equipment or other tangible personal property that is exempt from or deductible from privilege or use tax under: (i) Section 8 -465, subsections (g) and (p) (ii) Section 8 -660, subsections (g) and (p) shall be exempt or deductible, respectively, from the tax imposed by this Section. (B) The gross proceeds of sales or gross income received from a contract {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 21 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 for the construction of an environmentally controlled facility for the raising of poultry for the production of eggs and the sorting, or cooling and packaging of eggs shall be exempt from the tax imposed under this Section. (C) The gross proceeds of sales or gross income that is derived from the installation, assembly, repair or maintenance of cleanrooms that are deducted from the tax base of the retail classification pursuant to Section 8 -465, subsection (g) shall be exempt from the tax imposed under this section. (D) The gross proceeds of sales or gross income that is derived from a contract entered into with a person who is engaged in the commercial production of livestock, livestock products or agricultural, horticultural, viticultural or floricultural crops or products in this state for the construction, alteration, repair, improvement, movement, wrecking or demolition or addition to or subtraction from any building, highway, road, excavation, manufactured building or other structure, project, development or improvement used directly and primarily to prevent, monitor, control or reduce air, water or land pollution shall be exempt from the tax imposed under this Section. (E) any amount attributable to development fees that are incurred in relation to the construction, development or improvement of real property and paid by the taxpayer as defined in the model city tax code or by a contractor providing services to the taxpayer shall be exempt from the tax imposed under this section. For the purposes of this paragraph: (i) the attributable amount shall not exceed the value of the development fees actually imposed. (ii) the attributable amount is equal to the total amount of development fees paid by the taxpayer or by a contractor providing services to the taxpayer and the total development fees credited in exchange for the construction of, contribution to or dedication of real property for providing public infrastructure, public safety or other public services necessary to the development. The real property must be the subject of the development fees. (iii) "development fees" means fees imposed to offset capital costs of providing public infrastructure, public safety or other public services to a development and authorized pursuant to A.R.S. Section 9463.05, A ", R ,S. Section I 1 -1102 or A.R.S Title 48 regardless of the jurisdiction to which the fees are paid. (2) Deductions. (A) All amounts subject to the tax shall be allowed a deduction in the amount of thirty -five percent (35 %). (B) The gross proceeds of sales or gross income that is derived from a contract entered into for the installation, assembly, repair or maintenance of income - producing capital equipment, as defined in Section 8 -110, that is deducted from the retail classification pursuant to Section 8- 465(g), that {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 22 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011-71 does not become a permanent attachment to a building, highway, road, railroad, excavation or manufactured building or other structure, project, development or improvement shall be exempt from the tax imposed by this Section. If the ownership of the realty is separate from the ownership of the income - producing capital equipment, the determination as to permanent attachment shall be made as if the ownership was the same. The deduction provided in this paragraph does not include gross proceeds of sales or gross income from that portion of any contracting activity which consists of the development of, or modification to, real property in order to facilitate the installation, assembly, repair, maintenance or removal of the income - producing capital equipment. For purposes of this paragraph, "permanent attachment" means at least one of the following: (i) to be incorporated into real property. (ii) to become so affixed to real property that it becomes part of the real property. (iii) to be so attached to real property that removal would cause substantial damage to the real property from which it is removed. (C) For taxable periods beginning from and after July 1, 2008 and ending before January 1, 2442017 the gross proceeds of sales or gross income derived from a contract to provide and install a solar energy device. The contractor shall register with the department of revenue as a solar energy contractor. By registering, the contractor acknowledges that it will make its books and records relating to sales of solar energy devices available to the department of revenue and the Town, as applicable, for examination. (3) Tax credits The following tax credits are available to owner - builders or speculative builders, not to exceed the tax liability against which such credits apply, provided such credits are documented to the satisfaction of the tax collector: (A) A tax credit equal to the amount of Town privilege or use tax, or the equivalent excise tax, paid directly to a taxing jurisdiction or as a separately itemized charge paid directly to the vendor with respect to the tangible personal property incorporated into the said structure or improvement to real property undertaken by the owner - builder or speculative builder. (B) A tax credit equal to the amount of privilege taxes paid to this Town, or charged separately to the speculative builder, by a construction contractor, on the gross income derived by said person from the construction of any improvement to the real property. (C) No credits provided herein may be claimed until such time that the gross income against which said credits apply is reported. Section 4. Section 8 -417 of the Tax Code of the Town of Marana is amended to read: Sec. 8 -417. Construction contracting: owner - builders who are not speculative builders. {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 23 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 (a) At the expiration of twenty -four (24) months after improvement to the property is substantially complete, the tax liability for an owner- builder who is not a speculative builder shall be at an amount equal to four percent (4 %) of: (1) the gross income from the activity of construction contracting upon the real property in question which was realized by those construction contractors to whom the owner - builder provided written declaration that they were not responsible for the taxes as prescribed in subsection 8- 415(c)(2); and (2) the purchase of tangible personal property for incorporation into any improvement to real property, computed on the sales price. (b) For taxable periods beginning from and after July 1, 2008, the portion of gross proceeds of sales or gross income attributable to the actual direct costs of providing architectural or engineering services that are incorporated in a contract is not subject to tax under this section. For the purposes of this subsection, "direct costs" means the portion of the actual costs that are directly expended in providing architectural or engineering services. (c) The tax liability of this Section is subject to the following provisions, relating to exemptions, deductions and tax credits: (1) Exemptions (A) The gross proceeds of sales or gross income attributable to the purchase of machinery, equipment or other tangible personal property that is exempt from or deductible from privilege or use tax under: (i) Section 8 -465, subsections (g) and (p) (ii) Section 8 -660, subsections (g) and (p) shall be exempt or deductible, respectively, from the tax imposed by this Section. (B) The gross proceeds of sales or gross income received from a contract for the construction of an environmentally controlled facility for the raising of poultry for the production of eggs and the sorting, or cooling and packaging of eggs shall be exempt from the tax imposed under this Section. (C) The gross proceeds of sales or gross income that is derived from the installation, assembly, repair or maintenance of cleanrooms that are deducted from the tax base of the retail classification pursuant to Section 8 -465, subsection (g) shall be exempt from the tax imposed under this Section. (D) The gross proceeds of sales or gross income that is derived from a contract entered into with a person who is engaged in the commercial production of livestock, livestock products or agricultural, horticultural, viticultural or floricultural crops or products in this state for the construction, alteration, repair, improvement, movement, wrecking or demolition or addition to or subtraction from any building, highway, road, excavation, manufactured building or other structure, project, development or improvement used directly and primarily to prevent, monitor, control or reduce air, water or land pollution shall be exempt from the tax imposed under this Section. (00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 24 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 (E) Any amount attributable to development fees that are incurred in relation to the construction, development or improvement of real property and paid by the taxpayer as defined in the model city tax code or by a contractor providing services to the taxpayer shall be exempt from the tax imposed under this section. For the purposes of this paragraph: (i) the attributable amount shall not exceed the value of the development fees actually imposed. (ii) the attributable amount is equal to the total amount of development fees paid by the taxpayer or by a contractor providing services to the taxpayer and the total development fees credited in exchange for the construction of, contribution to or dedication of real property for providing public infrastructure, public safety or other public services necessary to the development. The real property must be the subject of the development fees. (iii) "development fees" means fees imposed to offset capital costs of providing public infrastructure, public safety or other public services to a development and authorized pursuant to A. .S. Section 9- 463.05, A ® I B S. Section 11 -1102 or A,R.S. Title 48 regardless of the jurisdiction to which the fees are paid. (2) Deductions. (A) All amounts subject to the tax shall be allowed a deduction in the amount of thirty -five percent (35 %). (B) The gross proceeds of sales or gross income that is derived from a contract entered into for the installation, assembly, repair or maintenance of income - producing capital equipment, as defined in Section 8 -110, that is deducted from the retail classification pursuant to Section 8- 465(g), that does not become a permanent attachment to a building, highway, road, railroad, excavation or manufactured building or other structure, project, development or improvement shall be exempt from the tax imposed by this Section. If the ownership of the realty is separate from the ownership of the income - producing capital equipment, the determination as to permanent attachment shall be made as if the ownership was the same. The deduction provided in this paragraph does not include gross proceeds of sales or gross income from that portion of any contracting activity which consists of the development of, or modification to, real property in order to facilitate the installation, assembly, repair, maintenance or removal of the income - producing capital equipment. For purposes of this paragraph, "permanent attachment" means at least one of the following: (i) to be incorporated into real property. (ii) to become so affixed to real property that it becomes part of the real property. (iii) to be so attached to real property that removal would cause substantial damage to the real property from which it is removed. (C) For taxable periods beginning from and after July 1, 2008 and ending before January 1, 2 14 the gross proceeds of sales or gross income (00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 25 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 derived from a contract to provide and install a solar energy device. The contractor shall register with the department of revenue as a solar energy contractor. By registering, the contractor acknowledges that it will make its books and records relating to sales of solar energy devices available to the department of revenue and the Town, as applicable, for examination. (3) Tax credits. The following tax credits are available to owner - builders and speculative builders, not to exceed the tax liability against which such credits apply, provided such credits are documented to the satisfaction of the tax collector: (A) A tax credit equal to the amount of Town privilege or use tax, or the equivalent excise tax, paid directly to a taxing jurisdiction or as a separately itemized charge paid directly to the vendor with respect to the tangible personal property incorporated into the said structure or improvement to real property undertaken by the owner - builder or speculative builder. (B) A tax credit equal to the amount of privilege taxes paid to this Town, or charged separately to the speculative builder, by a construction contractor, on the gross income derived by said person from the construction of any improvement to the real property. (C) No credits provided herein may be claimed until such time that the gross income against which said credits apply is reported. (d) The limitation period for the assessment of taxes imposed by this Section is measured based upon when such liability is reportable, that is, in the reporting period that encompasses the twenty -fifth (25th) month after said unit or project was substantially complete. Interest and penalties, as provided in Section 8 -540, will be based on reportable date. (e) (Reserved) Section 5. Section 8 -445 of the Tax Code of the Town of Marana is amended to read: Sec. 8 -445. Rental, leasing, and licensing for use of real property. (a) The tax rate shall be at an amount equal to two percent (2 %) of the gross income from the business activity upon every person engaging or continuing in the business of leasing or renting real property located within the Town for a consideration, to the tenant in actual possession, or the licensing for use of real property to the final licensee located within the Town for a consideration including any improvements, rights, or interest in such property; provided further that: (1) Payments made by the lessee to, or on behalf of, the lessor for property taxes, repairs, or improvements are considered to be part of the taxable gross income. (2) Charges for such items as telecommunications, utilities, pet fees, or maintenance are considered to be part of the taxable gross income. (3) However, if the lessor engages in telecommunication activity, as evidenced by installing individual metering equipment and by billing each tenant based upon actual usage, such activity is taxable under Section 8 -470. {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 26 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011-71 (b) If individual utility meters have been installed for each tenant and the lessor separately charges each single tenant for the exact billing from the utility company, such charges are exempt. (c) Charges by a qualifying hospital, qualifying community health center or a qualifying health care organization to patients of such facilities for use of rooms or other real property during the course of their treatment by such facilities are exempt. (d) Charges for joint pole usage by a person engaged in the business of providing or furnishing utility or telecommunication services to another person engaged in the business of providing or furnishing utility or telecommunication services are exempt from the tax imposed by this Section. (e) (Reserved) (f) (Reserved) (g) (Reserved) (h) Except as may be provided in another Section of this Chapter, the tax prescribed by this Section shall not include gross income from the rental, leasing, or licensing of lodging or lodging space to an individual who resides therein. (i) (Reserved) 0) Exempt from the tax imposed by this Section is gross income derived from the activities taxable under Section 8 -444 of this code. (k) (Reserved) (1) (Reserved) (m) (Reserved) (n) Notwithstanding the provisions of Section 8- 200(b), the fair market value of one (1) apartment, in an apartment complex provided rent free to an employee of the apartment complex is not subject to the tax imposed by this Section. For an apartment complex with more than fifty (50) units, an additional apartment provided rent free to an employee for every additional fifty (50) units is not subject to the tax imposed by this Section. (o) Income derived from incarcerating or detaining prisoners who are under the jurisdiction of the United States, this State or any other state or a political subdivision of this State or of any other state in a privately operated prison, jail or detention facility is exempt from the tax imposed by this Section. (p) Charges by any hospital, any licensed nursing care institution, or any kidney dialysis facility to patients of such facilities for the use of rooms or other real property during the course of their treatment by such facilities are exempt. (q) Charges to patients receiving "personal care" or "directed care ", by any licensed assisted living facility, licensed assisted living center or licensed assisted living home as defined and licensed pursuant to Chapter 4 Title 36 Arizona Revised Statutes and Title 9 of the Arizona Administrative Code are exempt. (r) Income received from the rental of any "low- income unit" as established under Section 42 of the Internal Revenue Code, including the low- income housing credit provided by IRC Section 42, to the extent that the collection of tax on rental income causes the "gross rent" defined by IRC Section 42 to exceed the income limitation for the low- income unit is exempt. This exemption also applies to income received from the rental of individual rental units subject to statutory or regulatory "low- income unit" rent restrictions similar to IRC Section 42 to the extent that the collection of tax from the {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 27 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011-71 tenant causes the rental receipts to exceed a rent restriction for the low- income unit. This subsection also applies to rent received by a person other than the owner or lessor of the low - income unit, including a broker. This subsection does not apply unless a taxpayer maintains the documentation to support the qualification of a unit as a low - income unit, the "gross rent" limitation for the unit and the rent received from that unit. S INCOME DERIVED FROM .' C:OMMER I 1. .,[ SSE TN WIfl(;If A RECIPROC AI INSI RI R OR A. CORPORATION LEASES R_EAl. PIMPER"I Y TO AN CORPORATION, FOR III P1'RI )S1,S OF THIS PARAGRAPF1_ R.PO A`1ION THAT NNIEETS ONE OF `1 I lip: 1-OI. I....O 1NC; CONDITIONS: T 1_,1 SST E1CI1 1TY PER CEN 1` 01- TI IE LESSOR, (all[ 11�(,�)RPQR1TIONI , `�, E CE O iNI' _L�_ OR CON TROI_,LED BY [ IE LESSOR. IS AT LEAST EIGI[T ' PER CENT OWNED OR CONTROL BY A C`O RI'ORATI( : }N TI :IAT ALSO OWNS � R _._ CONTROL A I I- AS T 1 IG1 -1 TY PERCENT Of 111E LESSOR, 1 RI'ORA T ION IS A F LEAST EIGI ITY PER cENTI` OW BY A CORPORATION THAT IS AT LEAS EIGHTY PER C1;N T O SET) OR CONTROLLED BY A RECIPROCAL INSt RER. ( I:.OR TF1E K.IRPOSES OF St B SECT ION (1). OWNERSHIP AND CONTROL.: ARE I 1 I I °,R 11NED BY RLl ER1 N(T 1T:I "I HE VO T INCA S1IARFS OF A CORPORATION. R1.0 11 ROC; 1. 1NSt.x[Z1:?R`' 1I S 1 111', 5 [[: S II,A ING AS PRESCRIBED ZI13ED IN A.R.S. SECTION TION ? -762. Section 6. Section 8 -595 of the Tax Code of the Town of Marana is amended to read: Sec. 8 -595. Collection of taxes when there is succession in and /or cessation of business. (a) In addition to any remedy provided elsewhere in this Town Code that may apply, the Tax Collector may apply the provisions of subsections (b) through (d) below concerning the collection of taxes when there is succession in and /or cessation of business. (b) The taxes imposed by this Chapter are a lien on the property of any person subject to this Chapter who sells his business or stock of goods, or quits his business, if the person fails to make a final return and payment of the tax within fifteen (15) days after selling or quitting his business. (c) Any person who purchases, or who acquires by foreclosure, by sale under trust deed or warranty deed in lieu of foreclosure, or by any other method, improved real property or a portion of improved real property for which the Privilege Tax imposed by this Chapter has not been paid shall be responsible for payment of such tax as a speculative builder or owner builder, as provided in Sections 8 -416 and 8 -417. {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 28 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011-71 (1) ANY 'F WHO IS A CREDITOR OR AN AFFILIATE OF CREDITOR., WIIO AC' Ot-;IRESIMI'IZOVEDR.EAI..,PIZOPER'f'YDIREC'1'1..Y OR INDIRECTLY FW)IM"I'l IE CREDITOR'S DEBTOR BY ANY MEANS SETFORTH INTHIS SU;BSECTION. SHALL PAY THETAX BASED ON THE ANVIO[INTRECEIVI-T) BY THE CREDITOR OR ITS AFFILIATE IN A S[IBSEQ LIEN T'SALFOF St_ l I IMPROVED REAL PROPERTY j'O A PARTY tjNREL., ATE 1- JE CREDITOR, R✓(JARDI-ESS OF WI JEN stici St j (XJEN"I SALE TAKES PL PACE. SUCHTAXSFIALLBEDII E . . . .................... 1 -.-m -- - - - --- ---- .......... ... . ....... IN TI IF MONTI I 1 II, MONTI I IN WI fIC1 I TI 1E SALE OF . ......... . . THE IMPROVED REAL PROPERTY BY TI -IF CREDITOR OR ITS AFFILIATE OCCAJ RS, ;NO TWITI IS" ANDING TI IE FOREGOING, IF I III:;: R,.EA,[,.,, PRO PER TYMEETSTHE DEFINITION OF PARTIALLY IMPROVED RESIDENTIAL REAL PROPERTY IN SECIIQN l .� ` ;�NF) AI.,L CIF THE ET ICY THE PART If 1 HE S1. THE TAX SHAI.J., NOT APPLY TO THE StjBSEQt.JF'N FS'Afj (22) INTHE EVEN.J..'....-A ( OR ITS AFFILIATE 1jSES'*I'HE ACQUIRED IMPROVED RFAL PROPERTY FOR ANY BI SINE I'LiRPOSE, OTHER THAN OPERATfNGTHE PROPERTY IN THE MANNER IN WHICH ITWAS OPERATED. OR WAS INTENDEDTO BE OPERATED. BEFORE THE ACQI- OR IN ANY OTHER MANNER L)NRE1..,A'FED TO SELLING THE PROPERTY. THE TAX SHAI.J., ICE QI.��.E. THE GROSS INCOME UPON WHICHTFIETAN SHAI.J.., BE DETERMINED PI-jR.S1.jANT TO SECTIONS 8-416 AND 8-417 SHALL BE THE FAIR MARKET VALtjE OF - 11 IF IMPROVED REAL PROPERTY AS OFTI 1E DATE OF ... ........ . ....................... . .... . ....................... ...... ................. .......... . .. . . . ...... -- - __ ....... t-JISITIO� SHALL BF.' FK IN T1 - M( FOI-1-OWING THE MONTH IN WHICH St-1 FIRST BUSINES USE OCCURS, WHEN APPL rf if- CRLDI I I BID SHALL BE DEEMED 1 BETI IE MARDI J VAL LIE OFTf IE PROPERTY AS OF TI JE DATE OF AQQ t I I S _rr 1 ON - DITOR OR JTS AFFILIATE HAS OCCURRED AND THE CREDITOR OR ITS AFFILIATE HAS PAID "I I- DUE FROM ITP(JR.SUANT - 'I ' 'OTHIS StJBSE"C TION, NEITHER THE CREDITOR NOR ITSAFF.I.I.IATE, NOR ANY FUT1JRE OWN1jR,SfLk1,L ANY 0I.JITSTANDING TAX. PF NAL;FIES OR INTE REST THAT MAY CONTINIJETO BE DIJE FROM THE DEBTOR BASED ONTHETRANSFER. FRON4 THE DEBTOR TO "I CREDITOR OR ITS AFFILIATE, ... .. . ........... . .. . R SECTION 8-416 OR SECTION 8-417 ONTHETRANSFER OF' THE IMPROVED Rf"'Al., PROPERTY'l CREDITOR OR. ITS AFFI1.jATE, OR ANY PART THEREOF. IS PAID TO "I HI COI .,I..,EC'I BYTHE DFB'I SUBSEQUE'NTTO PAYINIEN]" OFTFIETAX BY THE CREDITOR OR ITS AFFILIATE, THE AMOUNTSO PAID MAY CONSTITIT17 A CREDIT. AS LQtjFfFABLY DETERMINED BY - ['HE T,. COLLECTOR IN GOOD FAITH. GOOD (00027141. DOC Regular Council Meeting - July 19, 201 - Page 29 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011-71 AGAINS] I I I EJ AX [IMPOSED ON IECREDITOR OR ITS AFI It-IA TE BY . ............ ............ . ...... .. . .......... .............. ------- LITI .1-E-R PARAGRAPI I I OR PARAGRAPI I `OF Ti its St.13SECTION. L5) ON'I'RARY.IFAC."REDI'I'ORoRI'I'S AE` FII.,I.A'1 BJE("I'ttO DESCRIBED IN PARYWRAMI I OR PARAGRAPH 2 OFTIJIS .S.I.J.13SECTION AND) .Stj(j I (_'REDITOR. OR AFTIIJAJJ:_, F[AS NOT 1 BEEN REQtJIREDTQ B EJ., ICE N1 1 . , S1-]) St)(11 CRIJ)HOR OR AFFILIATE SI IALI_ 13ECO3%J1..`I._1C1..`NSED NO LATE'R THAN'11 IE DATE ON WHIC1111IFTAX IS 1)(JE. (d) A person's successors or assignees shall withhold from the purchase money an amount sufficient to cover the taxes required to be paid, and interest or penalties due and payable, until the former owner produces a receipt from the Tax Collector showing that all Town tax has been paid or a certificate stating that no amount is due as then shown by the records of the Tax Collector. The Tax Collector shall respond to a request from the seller for a certificate within fifteen (15) days by either providing the certificate or a written notice stating why the certificate cannot be issued. (1) If a subsequent audit shows a deficiency arising before the sale of the business, the deficiency is an obligation of the seller and does not constitute a liability against a buyer who has received a certificate from the Tax Collector. (2) If the purchaser of a business or stock of goods fails to obtain a certificate as provided by this Section, he is personally liable for payment of the amount of taxes required to be paid by the former owner on account of the business so purchased, with interest and penalties accrued by the former owner or assignees. Section 7. Section 8-660 of the Tax Code of the Town of Marana is amended to read: See. 8-660. Use tax: exemptions. The storage or use in this Town of the following tangible personal property is exempt from the Use Tax imposed by this Article: (a) tangible personal property brought into the Town by an individual who was not a resident of the Town at the time the property was acquired for his own use, if the first actual use of such property was outside the Town, unless such property is used in conducting a business in this Town. (b) tangible personal property, the value of which does not exceed the amount of one thousand dollars ($1,000) per item, acquired by an individual outside the limits of the Town for his personal use and enjoyment. (c) charges for delivery, installation, or other customer services, as prescribed by Regulation. (d) charges for repair services, as prescribed by Regulation. (e) separately itemized charges for warranty, maintenance, and service contracts. (f) prosthetics. (g) income-producing capital equipment. (h) rental equipment and rental supplies. (i) mining and metallurgical supplies. 0) motor vehicle fuel and use fuel which are used upon the highways of this State and (00027141.DOC /) Regular Council Meeting - July 19, 2011 - Page 30 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 upon which a tax has been imposed under the provisions of Article I or I1, Chapter 16, Title 28, Arizona Revised Statutes. (k) tangible personal property purchased by a construction contractor, but not an owner- builder, when such person holds a valid Privilege License for engaging or continuing in the business of construction contracting, and where the property acquired is incorporated into any structure or improvement to real property in fulfillment of a construction contract. (1) sales of motor vehicles to nonresidents of this State for use outside this State if the vendor ships or delivers the motor vehicle to a destination outside this State. (m) tangible personal property which directly enters into and becomes an ingredient or component part of a product sold in the regular course of the business of job printing, manufacturing, or publication of newspapers, magazines or other periodicals. Tangible personal property which is consumed or used up in a manufacturing, job printing, publishing, or production process is not an ingredient nor component part of a product. (n) rental, leasing, or licensing for use of film, tape, or slides by a theater or other person taxed under Section 8 -410, or by a radio station, television station, or subscription television system. (o) food served to patrons for a consideration by any person engaged in a business properly licensed and taxed under Section 8 -455, but not food consumed by owners, agents, or employees of such business. (p) tangible personal property acquired by a qualifying hospital, qualifying community health center or a qualifying health care organization, except when the property is in fact used in activities resulting in gross income from unrelated business income as that term is defined in 26 U.S.C. Section 512. (q) food for home consumption. (r) (Reserved) (1) (Reserved) (2) (Reserved) (3) (Reserved) (4) (Reserved) (s) groundwater measuring devices required by A.R.S. Section 45 -604. (t) (Reserved) (u) aircraft acquired for use outside the State, as prescribed by Regulation. (v) sales of food products by producers as provided for by A.R.S. Sections 3 -561, 3 -562 and 3 -563. (w) (Reserved) (x) (Reserved) (y) Tangible personal property donated to an organization or entity qualifying as an exempt organization under 26 U.S.C. Section 501(c)(3); if and only if (1) the donor is engaged or continuing in a business activity subject to a tax imposed by Article IV; and (2) the donor originally purchased the donated property for resale in the ordinary course of the donor's business; and (3) the donor obtained from the donee a letter or other evidence satisfactory to the Tax Collector of qualification under 26 U.S.C. Section 501(c)(3) from the Internal {00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 31 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011-71 Revenue Service or other appropriate federal agency; and (4) the donor maintains, and provides upon demand, such evidence to the Tax Collector, in a manner similar to other documentation required under Article III. (z) (Reserved) (aa) tangible personal property used in remediation contracting as defined in Section 8- 100 and Regulation 8- 100.5. (bb) materials that are purchased by or for publicly funded libraries including school district libraries, charter school libraries, community college libraries, state university libraries or federal, state, county or municipal libraries for use by the public as follows: (1) printed or photographic materials. (2) electronic or digital media materials. (cc) food, beverages, condiments and accessories used for serving food and beverages by a commercial airline, as defined in A.R.S. § 42- 5061(A)(49), that serves the food and beverages to its passengers, without additional charge, for consumption in flight. For the purposes of this subsection, "accessories" means paper plates, plastic eating utensils, napkins, paper cups, drinking straws, paper sacks or other disposable containers, or other items which facilitate the consumption of the food. (dd) wireless telecommunication equipment that is held for sale or transfer to a customer as an inducement to enter into or continue a contract for telecommunication services that are taxable under Section 8 -470. (ee) (Reserved) (ff) alternative fuel as defined in A.R.S. § 1 -215, by a used oil fuel burner who has received a Department of Environmental Quality permit to burn used oil or used oil fuel under A.R.S. § 49 -426 or § 49 -480. (gg) food, beverages, condiments and accessories purchased by or for a public educational entity, pursuant to any of the provisions of Title 15, Arizona Revised Statutes; to the extent such items are to be prepared or served to individuals for consumption on the premises of a public educational entity during school hours. For the purposes of this subsection, "accessories" means paper plates, plastic eating utensils, napkins, paper cups, drinking straws, paper sacks or other disposable containers, or other items which facilitate the consumption of the food. (hh) personal hygiene items purchased by a person engaged in the business of and subject to tax under Section 8 -444 of this code if the tangible personal property is furnished without additional charge to and intended to be consumed by the person during his occupancy. (ii) the diversion of gas from a pipeline by a person engaged in the business of operating a natural or artificial gas pipeline, for the sole purpose of fueling compressor equipment to pressurize the pipeline, is not a sale of the gas to the operator of the pipeline. Oj) food, beverages, condiments and accessories purchased by or for a nonprofit charitable organization that has qualified as an exempt organization under 26 U.S.0 Section 501(c)(3) and regularly serves meals to the needy and indigent on a continuing basis at no cost. For the purposes of this subsection, "accessories" means paper plates, plastic eating utensils, napkins, paper cups, drinking straws, paper sacks or other disposable containers, or other items which facilitate the consumption of the food. {00027141_DOC /) Regular Council Meeting - July 19, 2011 - Page 32 of 190 EXHIBIT A TO MARANA RESOLUTION NO. 2011 -71 (kk) sales of motor vehicles that use alternative fuel if such vehicle was manufactured as a diesel fuel vehicle and converted to operate on alternative fuel and sales of equipment that is installed in a conventional diesel fuel motor vehicle to convert the vehicle to operate on an alternative fuel, as defined in A.R.S. § 1 -215. IA.: TIII; ST ()1�,�` GE. (ISF €)I� (�) . CNS.1,N] " "FION O "1 ANGIBII~:. _, PI�,'RSt)NAL PROPERTY IN' I =III; Cl l "Y ()R T(.)WN BY A SCHOOL DISTRICT OR Q AID T R S ( 11 11001-1. (00027141.DOC /} Regular Council Meeting - July 19, 2011 - Page 33 of 190 OUTLINE OF CHANGES TO MODEL CITY TAX CODE The attached Model City Tax Code changes, summarized below, were approved by the Municipal Tax Code Commission in April 2011. Section 1 This section adds language to the existing definitions of "Food" and "Prosthetic ", and creates a new definition for the phrase "Medical marijuana ". These changes were made for the purpose of specifically excluding medical marijuana from those definitions, and thus excluding sales of medical marijuana from the related exemptions available under the Retail classification of the Model City Tax Code (MCTC). The additional language makes it clear that medical marijuana sales are taxable at the regular Retail tax rate in all cities and towns. This section shall be effective from and after June 1, 2011. Sections 2-4 The changes in these sections are to comply with the 2010 regular legislative session passage of HB 2700 HB2700 changed the sunset date under Contracting in A.R.S. 42- 5075(B)(14) for installed solar energy devices, extending the deadline from January 1, 2011 to 2017. The three affected sections of the MCTC have the same language and these changes align the sunset date in the MCTC with the State statute. A technical correction adding reference to the Arizona Revised Statutes is also being added to the exemption for development fees in each section. These sections shall be effective from and after July 29, 2010. Section 5 New subsection 445(s) is added to incorporate HB2510 passed during the 2010 regular legislative session, which prohibited cities and towns from taxing commercial rentals between two corporations when either the landlord or lessor corporation owns at least 80% of the voting stock of the other corporation. Also allows exemption if a third corporation owns 80% of both the landlord and the lessor corporations, and treats a "reciprocal insurer" as if it were a "corporation" for purposes of the exemption. This section shall be effective from and after July 29, 2010. Section 6 The changes in this section were made based on cooperation and compromise between the Unified Audit committee and banking interests. The changes address the treatment of successor privilege tax liability in the event of a foreclosure. The new language allows for the deferral of payment of the delinquent privilege tax until after the creditor subsequently sells the property, aligning the cash flow related to the property with payment of the tax liability. In addition, this amendment will allow for the creditor's tax base to be based on their subsequent selling price, and also provides for tax credits in the event the debtor comes forward to pay their liability after the creditor's payment. This section shall be effective from and after May 1, 2010. Section 7 During the 2009 regular legislative session, SB1196 created a use tax exemption for school districts and charter schools which was not previously incorporated into the MCTC. This preemption in A.R.S. 42- 6004(F) exempts the storage, use, or consumption of tangible personal property by a school district or charter school. This section shall be effective from and after September 30, 2009 Regular Council Meeting - July 19, 2011 - Page 34 of 190 MART A =/ I 0; 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item C 2 From: Josh Wright , Strategic Initiatives Director Strategic Plan Focus Area: Commerce Strategic Plan Focus Area - Additional Information: The "Commerce" focus area of the Marana Strategic Plan identifies "Continue support of and increase interaction and co- sponsored programs with Marana Chamber of Commerce" as an action strategy. Subject: R esolution No. 2011 -72. _Relating to Economic Development; approving and authorizing the Mayor to execute a funding agreement with the Marana Chamber of Commerce, Inc., to support operation of a visitor center and provision of services to the Marana business community Discussion: The Marana Chamber of Commerce has been a long- standing partner of the Town of Marana in supporting a healthy and engaged business community. The Chamber offers a broad variety of services to area businesses, including networking opportunities, grand openings and ribbon cuttings, educational classes and legislative advocacy, as well as providing a venue for Town officials to address the business community through the annual State of the Town and other events. In partnership with the Chamber, Town staff has prepared a Funding Agreement similar to those adopted by Council in previous years. The proposed agreement provides for a $30,000 General Fund allocation to the Chamber to support its activities, including specific services to be provided to the Town and business community. This year's agreement also includes an additional General Fund allocation of up to $5,000 as reimbursement for aesthetic improvements made to the Chamber's main offices and visitor center. The intent of this additional funding is to provide the Chamber with an opportunity to beautify its facilities and continue to maintain a professional appearance attractive to visitors and businesses. Financial Impact: The proposed agreement allocates $30,000 in general support funding to the Marana Chamber of Commerce, as well as up to $5,000 in additional available funding for facilities upgrades and renovations. Both funding allocations are budgeted items within the Council's adopted FY '11 -'12 final budget. Regular Council Meeting - July 19, 2011 - Page 35 of 190 ATTACHMENTS: Name: Description: Type: O Reso Chamber Agreement.doc Resolution Resolution 0 Final Chamber Fund ing_Agreement_FY_11- Exhibit A - Chamber Funding Agreement Exhibit 12 (00027065).DOC El C. amber contract Exhibit_A_FY_11- 12.doc Agreement Exhibit A - Payment Request Form Exhibit Staff Recommendation: Staff recommends approval of the resolution and proposed funding agreement. Suggested Motion: I move to adopt Resolution No. 2011 -72; approving and authorizing the Mayor to execute a funding agreement with the Marana Chamber of Commerce, Inc., to support operation of a visitor center and provision of services to the Marana business community. Regular Council Meeting - July 19, 2011 - Page 36 of 190 MARANA RESOLUTION NO. 2011-72 RELATING TO ECONOMIC DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A FUNDING AGREEMENT WITH THE MARANA CHAMBER OF COMMERCE, INC., TO SUPPORT OPERATION OF A VISITOR CENTER AND PROVISION OF SERVICES TO THE MARANA BUSINESS COMMUNITY WHEREAS the Town of Marana has established a need for economic development activities to ensure a sustainable community; and WHEREAS "Commerce" is identified as one of the five focus areas of the Marana Strategic Plan, adopted by the Town Council in February 2009 and revised in December 2009; and WHEREAS the Marana Chamber of Commerce, Inc., operates a visitor center and performs services that provide benefits to the business community; and WHEREAS the Mayor and Council find that the adoption of this resolution is in the best interests of Marana and its citizens and businesses. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The funding agreement between the Town of Marana and the Marana Chamber of Commerce, Inc., attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. The Town 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 funding agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19 day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 37 of 190 FUNDING AGREEMENT MARANA CHAMBER OF COMMERCE, INC. THIS FUNDING AGREEMENT ( "Agreement ") is entered into by and between the TowN of MARANA, an Arizona municipal corporation ( "Town ") and the Marana Cham- ber of Commerce, Inc., an Arizona 501(c)(6) nonprofit corporation ( "Chamber "). The Town and Chamber are sometimes referred to collectively as the "Parties," either of which is sometimes individually referred to as a "Party." RECITALS A. Town has established a need for economic development activities to ensure a sustainable community. B. Commerce is identified as one of the five focus areas of the Marana Strategic Plan, adopted by the Town Council in February 2009 and revised in December 2009. C. Chamber operates a Visitor Center and other services for the business commu- nity that provide information about Town's attractions and business services benefitting the Town and its residents. D. Town has determined that the general welfare of the citizens of Marana will be substantially advanced by authorizing the funding under the terms and conditions and for the purposes as set forth in this Agreement. E. The Parties acknowledge that tracking Town payments and Chamber outputs and outcomes resulting from Town funding is prudent practice to assure that public funds are appropriately used and that the public receives the anticipated benefits of the funding AGREEMENT Now, THEREFORE, based on the foregoing recitals, which are incorporated here by reference, the Parties agree as follows: Section 1. General Funding. Town hereby commits $30,000 of funding from Town's Fiscal Year 2011 -2012 budget to Chamber to fund general assistance for Chamber activities. Section 2. Facilities Funding. Town hereby commits to make available an addi- tional $5,000 of funding from Town's Fiscal Year 2011 -2012 budget to fund fagade, signage, landscaping or other such improvements to the internal and /or external appear- ance of the Chamber's facility located at 13881 N. Casa Grande Highway. Section 3. Outputs. Between July 1, 2011 and June 30, 2012, Chamber hereby agrees to provide the following outputs with Town general assistance funding provided under this agreement: 3.1. Chamber will operate the Marana Visitor Center during established busi- ness hours of 8:30 AM — 4:30 PM, Monday through Friday, observing regular Regular Cot!gAW $gjjactlVy I ?,,*Page 38 of 190 _ 1 holidays, and will comply with all regulations established by the Arizona Office of Tourism for the operation of Local Visitor Information Centers. 3.2. Chamber will provide opportunities, as requested, for representatives of Town to address the Marana business community. These opportunities may be as part of another event organized by Chamber, including Chamber networking breakfasts, monthly lunches, legislative and economic development briefings, or other similar events. 3.3. Chamber will produce and distribute a map of Marana streets and incor- porated boundaries and a membership directory. Town may request from Cham- ber a maximum of 2,500 maps and 3,000 directories for its own distribution. 3.4. Chamber will organize and execute the "Business for a Day/Principal for a Day" program to promote better communication between the business and edu- cation sectors and shall participate in any workforce development initiatives orga- nized and implemented by Town. 3.5. Chamber will contact all new Marana businesses to provide them with in- formation on local business resources. Town will provide Chamber with a monthly list of new business licenses issued in Marana. 3.6. Chamber will organize and execute the "State of the Town" event to pro- vide Town officials the opportunity to address the community on current affairs. 3.7. Chamber will collaborate with Town on questions and methodology used to conduct a survey of Marana businesses regarding the local business climate. 3.8. Chamber will maintain an active Economic Development Committee to advise Town on local and regional business issues. Town will assign a representa- tive to serve as liaison to this committee. 3.9. Chamber will participate in any tourism development initiatives orga- nized and implemented by Town. Section 4. Payments Town shall pay Chamber as follows: 4.1. General Funding — The Town shall pay the Chamber in three installments of $10,000 each, once per quarter, except the fourth quarter of Town's fiscal year, upon receipt of a Payment Request Form attached as Exhibit A. 4.2. Facilities Funding — The Town shall reimburse the Chamber for allowable expenses incurred, up to $5,000, upon Town approval of a Payment Request Form for Facilities Funding. Chamber must submit copies of quotes, contracts, invoices, and /or canceled checks which support the reimbursement request along with the Payment Request Form. The Payment Request Form must be received by Town no later than 30 calendar days after the termination date of this Agreement. Facili- ties Funding shall remain in Town's possession until payment to Chamber is ap- proved pursuant to this paragraph. Section 5. Reporting Within 30 days following the end of Town's fiscal year on June 30, 2012, Chamber shall submit to Town a written annual report demonstrating Chamber's compliance with each of the outputs listed in Section 3 of this Agreement. Regular Cop9Srll W g9Gj,:M 1$,,�%&Page 39 of 190 -2- Town may additionally request a written or oral report from Chamber at any time de- monstrating Chamber's progress in complying with each of the outputs listed in Section 3 of this Agreement. Section 6. Required Insurance Before receiving any payment under this Agreement, Chamber shall deliver to Town one or more certificates of insurance with carriers acceptable to Town evidencing the following coverages for at least the term of this Agreement: 6.1. $1,000,000 per occurrence general liability coverage with Town listed as additional insured. 6.2. $1,000,000 per occurrence automobile liability coverage with Town listed as additional insured (if the Chamber has vehicles). 6.3. $1,000,000 per occurrence directors and officers coverage with Town listed as additional insured. 6.4. State of Arizona minimum workers' compensation coverage (if Chamber has paid staff). Section 7. Corporate Documents Before receiving initial payment under this Agreement, Chamber shall ensure that copies of the following Chamber documentation, including any and all amendments are on file with Town: 7.1. Articles of incorporation. 7.2. Current bylaws. 7.3. List of current members of Chamber's Board of Directors. 7.4. Current fiscal year's budget approved by Chamber's Board of Directors. 7.5. Internal Revenue Service designation letter. Section 8. Amendments to Insurance and Documentation True and accurate copies of any amendments during the term of this Agreement to coverages or terms of insurance required by Section 6 above or to Chamber's corporate documentation listed in Section 7 above shall be provided to the Town as soon as practicable after approval, but in any event not later than one calendar week after they become effective. Amend- ments that reduce the insurance coverages below the minimums set forth in Section 6 above or that in the Town's reasonable opinion materially affect the Chamber's ability to deliver the outputs set forth in Section 3 above constitute default for which Town may withhold payment until Chamber restores the minimum insurance coverages or re- stores Chamber's ability to deliver the outputs. Section 9. Default and Dispute Resolution If either Party defaults (the "Default- ing 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 Section 11 below to the Defaulting Party, stating the nature of the default claimed and demanding that the default be corrected. The Defaulting Party shall then have 20 days from the date of the notice within which to cure the default. If any default is not cured within 20 days, then the Non - Defaulting Party shall be entitled to Regular cOKMhWr0RG ctlO I?, j 2P6&Page 40 of 190 -3- begin the mediation and arbitration proceedings set forth in paragraphs 9.1 and 9.2 be- low. 9.1. Mediation If there is a dispute under this Agreement which the Parties cannot resolve among themselves, the Parties agree that there shall be a 21 -day 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 Chamber and Town. If the Parties cannot agree upon the se- lection of a mediator within seven days, then within three days thereafter Town shall (on its behalf and on behalf of Chamber) request the presiding judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint an in- dependent mediator. The cost of mediation shall be divided equally between the mediating Parties. The results of the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium period. 9.2. Arbitration If mediation (paragraph 9.1 above) fails to result in resolution of the dispute, the dispute, controversy, claim or cause of action arising out of or relating to this Agreement shall be settled by submission of the matter by all Par- ties to binding arbitration in accordance with the rules of the American Arbitra- tion Association and the Arizona Uniform Arbitration Act, A.R.S. § 12 -501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. Section 10. Indemnity and Hold Harmless Chamber shall indemnify and hold harmless Town, its officers, employees, and agents from and against any and all claims relating to Chamber's activities, including but not limited to those funded in whole or in part by this Agreement. Section 11. Manner of Serving All notices, filings, consents, approvals and oth- er 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, to (or to such oth- er addresses as any Party may from time to time designate in writing and deliver in a like manner): To Town: TOWN OF MARANA Director of Strategic Initiatives 11555 West Civic Center Drive, Building A3 Marana, Arizona 85653 With a copy to: TOWN OF MARANA Town Attorney 11555 West Civic Center Drive Building A3 Marana, Arizona 85653 Regular com0hWORG 1$,A%&Page 41 of 190 -4- To Chamber: Marana Chamber of Commerce, Inc. 13881 North Casa Grande Highway Marana, Arizona 85653 Section 12. Waiver No delay in exercising any right or remedy shall constitute a waiver of that right or remedy, and no waiver by Town or Chamber of the breach of any term of this Agreement shall be construed as a waiver of any preceding or succeed- ing breach of the same or any other term of this Agreement. Section 13. Attorney's Fees If any Party brings a lawsuit against any other Par- ty to enforce any of the terms of this Agreement, or by reason of any breach or default of this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys' fees by the other Party, in an amount determined by the court and not by the jury. Nothing in the use of the word "lawsuit" in the preceding sentence shall constitute a waiver, requiring disputes to be resolved by binding arbitration. Section 14. Headings The descriptive headings of this Agreement are inserted to assist in understanding the meaning and construction of this Agreement. Section 15. Recitals The Recitals set forth at the beginning of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here. Section 16. 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. Section 17. Time Essence Time is of the essence for purposes of this Agree- ment. Section 18. No Assignment Chamber's obligations under this Agreement may not be assigned without the written consent of the Town Manager or designee. Section 19. No Partnership and Third Parties It is not intended by this Agree- ment to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between Town and Chamber. 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. Section 20. 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. Section 21. Imposition of Duty by Law This Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. Section 22. 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. Regular CopgAh li9j1actVy 1$,qAjh 42 of 190 -5- Section 23. 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 by this Agreement. Section 24. Good Standing; Authority Chamber represents and warrants to Town that it is duly formed and validly existing under the laws of the State of Arizona. Town represents and warrants to Chamber 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 au- thorized and empowered to bind the Party on whose behalf each such individual is sign- ing. Section 25. 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. Section 26. 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. Section 27. Interpretation This Agreement has been negotiated by Town and Chamber, 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. Section 28. Force Majeure If any Party is unable to perform under this Agree- ment by reason of "force majeure," then the failure to perform shall not constitute a de- fault under this Agreement as long as the non - performing Party uses its best effort to remedy with all reasonable speed the event or condition causing the non - performance and performance can be restored within a reasonable amount of time. "Force majeure" means any condition or event not reasonably within the control of a Party, including without limitation, "acts of God," strikes, lock -outs, or other disturbances of employ- er /employee relations; acts of public enemies; orders or restraints of any kind of gov- ernment 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. Section 29. Conflict of Interest This Agreement is subject to A.R.S. § 38 -511, which provides for cancellation of contracts by government entities in certain instances involving conflicts of interest. Section 30. Chamber warrants that it, and any subcontractor who performs any work for Chamber under this Agreement, will at all times comply with all federal im- migration laws and regulations that relate to its employees and with Arizona Revised Statutes section (A.R.S. §) 23 -214 (A). Chamber acknowledges that pursuant to A.R.S. § 41 -4401 and effective September 30, 2008, a breach of this warranty is a ma- terial breach of this Agreement subject to penalties up to and including termination of Regular ��flrglifl�actl 1$,t�*&Page 43 of 190 -6- this Agreement, and that Town retains the legal right to inspect the papers of any em- ployee who works on the Agreement to ensure compliance with this warranty. Section 31. Chamber certifies that it does not have, nor will it for the duration of this Agreement have, scrutinized business operations in Sudan or Iran as defined in A.R.S. § 35 -391 and A.R.S. § 35 -393, respectively. Section 32. Effective Date; Term This Agreement is effective on the date of the last Party's signature below and shall automatically terminate and shall thereafter be void for all purposes on July 1, 2012, unless sooner terminated by the mutual consent of the Parties. IN WITNESS WHEREOF, the Parties have executed this agreement as of the date set forth below their respective signatures. Town: Chamber: THE TOWN OF MARANA, MARANA CHAMBER OF COMMERCE, INC., an Arizona municipal corporation an Arizona 501 (c) 6 non - profit corporation By: By: Printed: Ed Honea, Mayor Its: Date: Date: ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney EXHIBIT A. Payment request form Regular CopR9hW0R &act!0Y 1$,,�*&Page 44 of 190 -7- M TOWN OF MARANA EXHIBIT A - PAYMENT REQUEST FORM (FY 2011 -2012) Agency /Contractor: Project Name: Prepared by: Name: Title: Authorized by: Authorized Signer Date: Period Reimbursement Requested For: Payment Number: Expenditures This Period: $ + / - Adjustments (Program Income /Other): $ Net Request This Period: $ Line Approved Expenditures Expenditures Item Line Item Description Budget (A) This Period (B) Prior Periods (C) Balance (D) 1. $ $ $ $ 2. 3. 4. 5. TOTAL (must total Town of Marana award) $ $ $ $ NOTE: For each line item, the figures in Columns (B), (C), and (D) must total the figure in Column (A). DEPARTMENT HEAD APPROVAL: DATE: FINANCE APPROVAL: CHECK NUMBER: DATE: All requests for budget changes are required to be submitted in writing and approved by authorized Town of Marana staff. Payment Request Form must be received within 30 calendar days following the end of the Town's fiscal year. All required certificates of insurance must be received by Town prior to issuance of payment. Regular Council Meeting - July 19, 2011 - Page 45 of 190 M �� �I UflKR1KMMWl .'. MARANA YV�M+! isaRa ; 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item C 3 From: Cedric Hay , Senior Assistant Town Attorney Strategic Plan Focus Area: Community Building Strategic Plan Focus Area - Additional Information: The Town's Strategic Plan identifies Community Building as a focus area which will enable the Town to achieve its long -term vision. One of the specific goals under this focus area is creating communities where residents are kept safe and secure. The intergovernmental agreement with Pima County for the incarceration of municipal prisoners furthers this goal and, therefore, helps the Town achieve its long term vision. Subject: Resolution N o . 2011 -73: Relating to Municipal Court; approving and authorizing the Mayor to execute an intergovernmental agreement with Pima County for payment for the incarceration of municipal prisoners Discussion: The Town of Marana and Pima County have an existing intergovernmental agreement (IGA) which sets forth a fee schedule for the payment of the costs associated with the incarceration of municipal prisoners at the Pima County Jail. The current IGA expired June 30, 2011 and the proposed renewal would be in effect until June 30, 2012. This Resolution authorizes the Mayor to sign a new IGA with Pima County to provide for the continuation of this arrangement. The new IGA includes a cost increase of approximately 12% which translates to an additional $25.48 for the first day of incarceration (currently $200.38) and an additional $9.87 for every day thereafter (currently $82.03). Aside from the cost increase the other terms remain unchanged. Financial Impact: It is not possible to quantify the exact impact of the cost increase since the Town's total costs are entirely dependent upon the number of people from our jurisdiction who are arrested and/or held at the Pima County Jail. Using last year's actual costs as a basis, it is estimated that the impact of the cost increase will be approximately $35,000. This assumes relatively similar rates of incarceration for the next year. Jail costs have been budgeted for next year with an amount sufficient to cover the anticipated cost increase. ATTACHMENTS: Regular Council Meeting - July 19, 2011 - Page 46 of 190 Name: Description: Type: 11 Reso_IGA_with_PC for _prisoner_costs_(00021385 2).DOC Resolution Resolution ❑ Agreement _ with_ Pima_ County re_payment_for _prisoners (00027131).P6F Exhibit A -IGA Exhibit Staff Recommendation: Staff recommends approval of the IGA with Pima County for payment for the incarceration of municipal prisoners at the Pima County Jail. Suggested Motion: I move to adopt Resolution No. 2011 -73; approving and authorizing the Mayor to execute an intergovernmental agreement with Pima County for payment for the incarceration of municipal prisoners. Regular Council Meeting - July 19, 2011 - Page 47 of 190 MARANA RESOLUTION NO. 2011 -73 RELATING TO MUNICIPAL COURT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT WITH PIMA COUNTY FOR PAY- MENT FOR THE INCARCERATION OF MUNICIPAL PRISONERS WHEREAS the Town of Marana requires the use of an appropriate facility for the incarcera- tion of its prisoners; and WHEREAS the Mayor and Council of the Town of Marana have determined that the Pima County Jail, owned and operated by Pima County, Arizona, will fulfill the Town's needs; and WHEREAS the Town of Marana and Pima County are parties to an existing intergovernmen- tal agreement for payment for the incarceration of the Town's prisoners; and WHEREAS the current agreement expired June 30, 2011; and WHEREAS the Mayor and Council of the Town ofMarana have determined that entering in- to another intergovernmental agreement with Pima County for payment for the incarceration of mu- nicipal prisoners is in the best interests of the Town and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the intergovernmental agreement between the Town of Marana and Pi- ma County attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized and directed to execute it for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and au- thorized to undertake all other tasks necessary to carry out the terms and objectives of the intergo- vernmental agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MA- RANA, ARIZONA, this 19 day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 48 of 190 {00021385.DOC / 2} i i i INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND TOWN OF MARANA FOR PAYMENT FOR THE INCARCERATION OF MUNICIPAL PRISONERS This Intergovernmental Agreement (IGA) is entered into by and between Pima County, a body politic and corporate of the State of Arizona ( "County ") and the Town of Marana, a municipal corporation ( "Town') pursuant to A.R.S. § 11 -952. Recitals County and Town may contract for services and enter into agreements with one another for joint or cooperative action pursuant to A.R.S. § 11 -951, et seq. County and Town desire to enter into an agreement to incarcerate Town's municipal prisoners in the Pima County Adult Detention Complex ( "PCADC" ). NOW, THEREFORE, County and Town, pursuant to the above, mutually agree as follows: Agreement I. Purpose f This IGA sets forth the terms and conditions under which Town's municipal prisoners shall be incarcerated in the PCADC. II. Scope County shall receive and detain all Town municipal prisoners who are medically fit to be incarcerated by County. County shall provide booking services, and after booking provide for the care, feeding and medical care of said prisoners. "Town municipal prisoner" shall mean any person who has been incarcerated as a result of a charge pending in the Town of Marana Court, or as a result of an agreement between the Town and another jurisdiction to allow the person to serve his sentence locally, or has been sentenced pursuant to an order of the Marana Town Court and for whom the Town has the legal obligation to provide or pay for prisoner housing. A prisoner arrested by Town of Marana Police �Hepartmerrt solely on another governmental entity's warrant is not a Town prisoner. Regular Council Meeting - July 19, 2011 - Page 49 of 190 Page 1 of 9 In regard to booking and related services and procedures, upon submission of the completed booking document to the PCADC Intake Support Specialist, County will immediately accept into custody all Town arrestees that present no obvious health issues that make the prisoner medically unacceptable for booking. Town agrees that such conditional acceptance will shorten the time officers spend in the booking process and benefit the Town. Within the initial ninety (90) minutes, County medical providers shall make a determination as to the prisoner's medical condition. Town agrees that if the prisoner presents a serious, emergent medical problem requiring hospital examination or medical rejection for booking within ninety (90) minutes of the time of conditional acceptance, Town shall send an officer to the PCADC to transport the prisoner for such medical examination or care as may be medically required as soon as possible. If a prisoner is taken from the PCADC for medical evaluation and returned to be incarcerated, Town shall not be charged twice for the first day billing rate of $225.86. By conditionally accepting the prisoner for the initial ninety (90) minute evaluation period, County does not in any way accept responsibility for the cost of medical care to be provided to that prisoner should it be determined by County that the prisoner requires hospitalization or that the prisoner is medically unacceptable for booking. County shall provide such booking and related services as prescribed by operations plans jointly approved by the Town of Marana Police and the Sheriff of Pima County. Transportation of prisoners to Town of Marana Court or other locations, only as ordered by Town of Marana Court, shall be the responsibility of the Town. County shall be responsible for transportation of prisoners for medical care after the prisoner has been in PCADC custody for ninety (90) minutes or more. III. Financing Town shall pay a first day billing rate of $225.86 to cover booking and intake expenditures and prisoner housing. For each billable day following the first day, Town shall pay $91.90 per day. The two rates are applicable to the period July 1, 2011 through June 30, 2012. The billing day as defined herein applies to each Town prisoner who is an inmate in, or under the control of the PCADC. A. Criteria and Rules Governing Billing: 1. A "billable day" means that period commencing at 0000 hours and ending as 2359 hours that same day, or any fractional part thereof, of any day the Town prisoner is in the custody or control of the PCADC. 2. A "modified billable day" means a billable day which is modified to reduce billing to one billable day at the first rate. "Modified billable days" are only applicable when applied to pretrial Town defendants who are booked between 1800 -2359 hours one day and released on the Town charge at the first AM initial appearance the following day. i E Regular Council Meeting - July 19, 2011 - Page 50 of 190 Page 2 of 9 3. `Billable custody" means any pretrial custody involving a misdemeanor offense which will be tried or adjudicated in Town of Marana Court, or any custody pursuant to a sentence imposed by Town of Marana Court. t~ 4. "Local limited jurisdiction courts" means those courts whose criminal jurisdiction is limited to misdemeanor offenses. B. Criteria for Assessment of Billing: 1. The costs of incarceration of Town prisoners shall commence on the day the prisoner is booked or held based on a Town charge into, or sentenced by, Town of Marana Court. Costs for incarceration shall cease under the guidelines established under the definition of "billable day." For Town pretrial defendants booked between 1800 and 2400 hours one day and released on all Town charges at or by the AM initial appearance the following morning, the Town shall be billed according to the guidelines established under the definition of "modified billable day." 2. When a prisoner is in custody for a charge or sentence from more than one local limited jurisdiction court, the billing charges for days of joint custody shall be apportioned. Costs for incarceration for days of joint custody shall be apportioned evenly based on the guidelines established under the definition of "billable day" among those jurisdictions from which the joint custody arises. 3. A Town prisoner who is subsequently charged into Pima County Superior Court and held in- custody on felony charges will cease to accrue billing charges after 2359 hours on the date that custody for felony charges is established. Felony custody shall take effect on the date when charging information is received in the PCADC Records Section and the prisoner is actually being held in-custody on the felony charges. 4. In the event of an escape, billing charges will cease to accrue after 2359 hours on the day of escape. In the event of a failure to report from authorized leave, billing charges will cease after 2359 hours of the last day of custody. Billing charges will begin again on the day the prisoner is recaptured or returned to custody and is actually being held in the PCADC. County will submit a statement of Town prisoner charges on a monthly basis. This statement shall provide information in alphabetical order as follows: name of prisoner, booking date, release date, indication of booking day billing or subsequent day billing, billing period, daily rates, total billing days, and the total bill. Town shall be allowed access to necessary i computer systems in a timely manner to verify the billing. Regular Council Meeting - July 19, 2011 - Page 51 of 190 Page 3 of 9 Any individual prisoner charges disputed shall be made known to the County within thirty (30) days after receipt of the monthly billing. If Town notifies County of a dispute within thirty (30) days of receipt of the monthly billing, Town may withhold payment on those specific f prisoners for whom billing is disputed until the dispute is resolved. No dispute will be accepted if not made within thirty (30) days after receipt of the monthly billing. Disputes about the billing statement shall be jointly reviewed by both parties and satisfactorily resolved within forty -five (45) days of the monthly billing. All charges shall be paid within sixty (60) days of receipt of the monthly billing, excluding disputed charges. Disputed charges shall be paid within thirty (30) days of resolution of the dispute. Charges remaining unresolved after the sixty (60) day period may be arbitrated by a mutually accepted third party. Town agrees to pay interest on outstanding charges beginning on the tenth day after resolution of the billing at a rate of 10% per annum until paid. Town agrees that when a check is sent to County in payment of a previously disputed charge, Town will attach an invoice detailing what specific charges are being paid. Town agrees that when funds are withheld due to a disputed charge, the specific charge disputed and the amount of payment being withheld will be specified on an invoice attached to the payment check for the period in which the disputed charge was included. Town agrees to attach to each check submitted to County an invoice indicating the dates for which that check is to be applied. Neither Party shall be obligated to the other for any costs incurred pursuant to this IGA except as proved herein. IV. Term This IGA is for the period July 1, 2011 through June 30, 2012 and shall be effective upon execution by the governing boards of the Parties. The Parties shall have the option of extending this IGA for four (4) additional one -year periods or any portion thereof. Any revisions or extensions of this IGA shall be by written amendment executed by the governing boards of the Parties. V. Termination ' Either Party may at any time and without cause terminate this IGA by providing the other Party ninety (90) days written notice of intent to terminate. VI. Jurisdiction Nothing in this IGA shall be construed as either limiting or extending the statutory jurisdiction of the Parties. VIL Indemnification To the extent permitted by law, each party (as Indemnitor) agrees to indemnify, defend and hold harmless the other party (as Indemnitee) from and against any and all claims, losses, liability, costs or expenses (including reasonable attorney's fees) (hereinafter collectively referred to as "claims ") arising out of bodily injury of any person (including death) or property damage, but only to the extent that such claims which result in vicarious/derivative liability to the Indemnitee, are caused by the act, omission, negligence, misconduct, or other fault of the Indemnitor, its officers, officials, agents, employees, or volunteers. Regular Council Meeting - July 19, 2011 - Page 52 of 190 Page 4 of 9 f E VIII. Insurance k Each Party shall obtain and maintain at its own expense, during the entire term of this IGA the following type(s) and amounts of insurance: a) Commercial General Liability in the amount of $1,000,000.00 combined single limit Bodily Injury and Property Damage. b) Commercial or Business automobile liability coverage for owned, non -owned and hired vehicles used in the performance of this Contract with limits in the amount of $1,000,000.00 combined single limit or $1,000,000.00 Bodily Injury, $1,000,000.00 Property Damage. C) If required by law, workers' compensation coverage including employees' liability coverage. Parties to this IGA shall provide thirty (30) days written notice to all other Parties of cancellation, non - renewal or material change of coverage. The above requirement may be alternatively met through self insurance pursuant to A.R.S. §§ 11 -261 and 11 -981 (or if a school district, § 15 -382) or participation in an insurance risk pool under A.R.S. § 11.952.01 (if a school district, § 15 -382), at no less than the minimal coverage levels set forth in this article. Parties to this agreement shall provide thirty (30) days written notice to all other Parties of cancellation, non - renewal or material change of coverage. IX. Compliance With Laws s The Parties shall comply with all federal, state and local laws, rules, regulations, standards and Executive Orders, without limitation to those designated within this IGA. The laws and regulations of the State of Arizona shall govern the rights of the Parties, the performance of this IGA and any disputes hereunder. Any action relating to this IGA shall be brought in an Arizona court in Pima County. M Arbitration The Parties agree to be bound by arbitration, as provided by in Arizona Revised Statutes § 12 -1501 et. seq., to resolve disputes arising out of this IGA where the sole relief sought is monetary damages not in excess of the jurisdictional limit set by the Pima County Superior Court. Regular Council Meeting - July 19, 2011 - Page 53 of 190 Page 5 of 9 XI. Non - Discrimination The Parties shall not discriminate against any County or Town employee, client or any other individual in any way because of that person's age, race, creed, color, religion, sex, disability or national origin in the course of carrying out their duties pursuant to this IGA. The Parties shall comply with the provisions of Executive Order 75 -5, as amended by Executive Order 99 -4, which is incorporated into this IGA by reference, as if set forth in full herein. XIL ADA The Parties shall comply with all applicable provisions of the Americans with Disabilities Act (Public Law 101 -336, 42 U.S.C. 12101 - 12213) and all applicable federal regulations under the Act, including 28 CFR Parts 35 and 36. XIII. Severability If any provision of this IGA, or any application thereof to the Parties or any person or circumstances, is held invalid, such invalidity shall not affect other provisions or applications of this IGA which can be given effect, without the invalid provision or application and to this end the provisions of this IGA are declared to be severable. XIV. Conflict of Interest This contract is subject to cancellation for conflict of interest pursuant to A.R.S. § 38- 511, the pertinent provisions of which are incorporated herein by reference. XV. Non - Appropriation Notwithstanding any other provision in this IGA, this IGA may be terminated if for any reason the Pima County Board of Supervisors does not appropriate sufficient monies for the purpose of maintaining this IGA. In the event of such cancellation, County shall have no further obligation to Town other than for payment for services rendered prior to cancellation. XVI. Legal Authority Neither Party warrants to the other its legal authority to enter into this IGA. If a court, at the request of a third person, should declare that either Party lacks authority to enter into this IGA, or any part of it, then the IGA, or parts of it affected by such order, shall be null and void, and no recovery may be had by either Party against the other for lack of performance or otherwise. XVII. Worker's Compensation Each Party shall comply with the notice of A.R.S. § 23 -1022 (E). For purposes of A.R.S. § 23 -1022, irrespective of the operations protocol in place, each Party is solely responsible for the payment of worker's compensation benefits for its employees. Regular Council Meeting - July 19, 2011 - Page 54 of 190 Page 6 of 9 XVIII. No Joint Venture It is not intended by this IGA to, and nothing contained in this IGA shall be construed to, w create any partnership, joint venture or employment relationship between the Parties or create any employer - employee relationship between County and any Town employees, or between Town and any County employees. Neither Party shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, including (without limitation) the other party's obligation to withhold Social Security and income taxes for itself or any of its employees. XIX. No Third Party Beneficiaries Nothing in the provisions of this IGA is intended to create duties or obligations to or rights in third parties not parties to this IGA or affects the legal liability of either Party to the IGA by imposing any standard of care with respect to the maintenance of public facilities different from the standard of care imposed by law. XX. Notices Any notice required or permitted to be given under this IGA shall be in writing and shall be served by delivery or by certified mail upon the other Party as follows (or at such other address as may be identified by a party in writing to the other party): County: Town: Pima County Sheriff's Department TOWN OF MARANA Corrections Bureau Chief 11555 W. Civic Center Dr. Bldg A. 1750 E. Benson Hwy. Marana, AZ 85653 Tucson, AZ 85714 With copies to: County Administrator 130 West Congress Street, loth Floor Tucson, Arizona 85701 Clerk of the Board 130 West Congress, 5 th Floor Tucson, Arizona 85701 Regular Council Meeting - July 19, 2011 - Page 55 of 190 Page 7 of 9 XXI. Entire Agreement 1 This document constitutes the entire Agreement between the Parties pertaining to the F subject matter hereof, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superseded and merged herein. This IGA shall not be modified, amended, altered or extended except through a written amendment signed by the Parties. In Witness Whereof, County has caused this Intergovenunental Agreement to be executed by the Chair of its Board of Supervisors, upon resolution of the Board and attested to by the Clerk of the Board, and Town has caused this Intergovernmental Agreement to be executed by the Mayor upon resolution of the Town Council and attested to by the Town Clerk: PIMA COUNTY: TOWN OF MARANA Chair, Board of Supervisors Mayor Date Date t Clerk, Board of Supervisors Town of Marana Clerk } Date Date J f F 1 Regular Council Meeting - July 19, 2011 - Page 56 of 190 Page 8 of 9 f Intergovernmental Agreement Determination The foregoing Intergovernmental Agreement between Pima County and the Town of Marana has been reviewed pursuant to A.R.S. § 11 -952 by the undersigned, who have determined 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 Intergovernmental Agreement represented by the ' undersigned. PIMA COUNTY: TOWN OF MARANA Deputy ty Attorney Town of Marana Attorney f Regular Council Meeting - July 19, 2011 - Page 57 of 190 Page 9 of 9 MAR AN ,O.; 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item C 4 From: Dorothy O'Brien , Utilities Director Strategic Plan Focus Area: Community Building Strategic Plan Focus Area - Additional Information: Secure all necessary water resources and infrastructure. Subject: Resolution No. 2011 -74. Relating to Utilities; approving and authorizing the Mayor to execute a purchase agreement between the town of Marana and Aqua Capital Management LP for the purchase of long term storage credits Discussion: The Town is required to replenish as much water as it uses. In 2010, the Town used approximately 2,100 acre feet and replenished its full 1,528 acre foot allotment of CAP water by having it delivered to and recharged at the Lower Santa Cruz Replenishment Project. Calendar year 2010 was the first year that all of the Town's wells are recovery wells. The Town used its reserved Long Term Storage Credits to cover the difference between the 2,100 acre feet pumped versus 1,528 acre feet stored. Aqua Capital Management LP has Long Term Storage Credits in the Tucson Active Management area. The Town has the opportunity to purchase 1,350 acre feet of credits. The cost of these credits is $142.50 per acre foot -- substantially less than the $161.00 per acre foot cost of Central Arizona Groundwater Replenishment District replenishment. Financial Impact: The purchase of these Long Term Storage Credits will reduce the Town's water costs to 88.5% of what they would be to purchase the credits from Central Arizona Groundwater Replenishment District, minimizing the short term costs while the Town continues to look for long term water contracts. Funding for this purchase was approved in the FY 12 budget. ATTACHMENTS: Name: Description: Type: El 201.1 Aqua—Capital for _Long_Term_Storage_Credits.doc Resolution Resolution ❑ Aqua Capital_LTSC_Agreement (00027109- 3).DOC Exhibit A to Resolution Exhibit El Exh_A to_Aqua_Capital_LTSC Purchase_Agt_ (00027208).PDF Exhibit A to Agt: ADWR Transfer Form Exhibit Regular Council Meeting - July 19, 2011 - Page 58 of 190 Staff Recommendation: The Utilities Department recommends the Town of Marana purchase Long Term Storage Credits from Aqua Capital Management LP. Commission Recommendation - if applicable: This item will be brought to the Utilities Commission at their next meeting. The purchase of Long Term Storage Credits aligns with previous discussions with the Commission members. Suggested Motion: I move to adopt Resolution No. 2011 -74; approving and authorizing the Mayor to execute the proposed contract with Aqua Capital Management LP for the purchase of Long Term Storage Credits. Regular Council Meeting -July 19, 2011 -Page 59 of 190 MARANA RESOLUTION NO. 2011-74 RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AGREEMENT BETWEEN THE TOWN OF MARANA AND AQUA CAPITAL MANAGEMENT LP FOR THE PURCHASE OF LONG TERM STORAGE CREDITS WHEREAS, the Town of Marana ( "Marana ") provides potable water to residents and businesses; and WHEREAS, the Town endeavors to purchase water annually equivalent to the volume of water pumped; and WHEREAS, Aqua Capital Management LP has a volume of Long Term Storage Credits they are willing to sell which will supplement the Town's purchase of water from Central Arizona Project. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The "Agreement to Sell and Assign Central Arizona Project Long -Term Storage Credits in the Tucson Active Management Area" 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 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 19 day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 60 of 190 AGREEMENT TO PURCHASE AND ASSIGN LONG -TERM STORAGE CREDITS This Agreement to Purchase and Assign Long Term Storage Credits (this Agreement) is entered into by and between the TowN OF MARANA (Buyer), an Arizona municipal corporation, and AQuA CAPITAL MANAGEMENT LP (Seller), a Delaware limited partnership, for the purchase and assignment of longterm storage credits (LTSCs) in the Tucson Active Management Area (AMA). Buyer and Seller are sometimes individually referred to in this Agreement as a "Part/" and sometimes collectively referred to in this Agreement as the "Parties." RECITALS A. The purpose of this Agreement is to provide for the purchase and assignment of LTSCs in the Tucson AMA in accordance with Arizona law and the requirelmnts of the Arizona Department of Water Resources (ADWR), which will mutually benefit the Buyer and Seller. B. Seller has a Long-Term Storage Account (LTSA) # 70- 411400 in the Tucson AMA in which Seller owns, holds and controls at least 1,350 acre-feet (at) of LTSCs as defiled by A.R.S. § 45- 802.01(11). The LTSCs that are the subject of this Agreement were earned by the storage of water in calendar year 2009 (CY09). C. Buyer has LTSA # 70- 411220 in the Tucson AMA. Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, LTSCs stored for recovery in the Tucson AMA, which shall be assigned and transferred from Seller's LTSA to Buyer's LTSA. AGREEMENT NOW, THEREFORE, for good and valuable consideration, and based on the mutual promises and covenants set forth in this Agreement, the Parties do hereby agree as follows: 1. Incorporation of Recitals The Recitals set forth above are true and correct and are incorporated by reference as though fully set forth here. 2. Purchase and Sale Seller agrees to sell, convey, transfer and assign to Buyer and Buyer agrees to purchase, receive and accept from Seller all of Seller's right, title and interest in up to 1,350.00 of of CY09 LTSCs, which Buyer intends to recover in the Tucson AMA, pursuant to the transfer form specifically set forth in Exhibit A to this Agreement (ADWR LTSC Transfer Form). 3. Purchase Price As full and complete consideration for the LTSCs, Buyer shall pay to Seller $142.50 per LTSC transferred and assigned to Buyer for a total purchase price of $192,375.00 (1,350.00 of x $142.50/af). 4. Payment of Purchase Price; Transfer of Credits; Escrow Agent A. Rita Maguire of MAGuiRE & PEARcE PLLC shall act as escrow agent for this transaction, and is referred to in this Agreement as the "Escrow Agent." B. Seller shall provide written notice to Buyer of the total number of LTSCs posted by ADWR to Seller's LTSA # 70- 411400. Seller shall concurrently make available to the Escrow 100027109.DOC / 31 AGREEMENT TO PURCHASE KONG -TERM STORAGE C PEDITS 7/12/20119:44 AM Regular Council Meeting - July 19, 2011 - Page 61 of 190 _ 1 _ Agent: (a) the ADWR LTSC Transfer Form executed by Seller; and (b) a good and negotiable check in the amount of $250.00 made payable to ADWR for the credit transfer fee imposed by ADWR. C. Upon confirmation by the Escrow Agent of receipt from Seller of (1) the ADWR LTSC Transfer Form executed by Seller and (2) a good and negotiable check in the amount of $250.00, the E scrow Agent shall immediately notify Buyer to pay to Seller the Purchase Price, pursuant to the Wire Instructions in Exhibit B attached to this Agreement. D. Not later than five business days after receiving notice from the Escrow Agent of the obligation to pay, Buyer shall pay the Purchase Price pursuant to the Wire Instructions in Exhibit B attached to this Agreement. Upon payment, Seller shall provide written notice to the Escrow Agent indicating confirlation of payment within three business days. Upon receipt of the Seller's confirmation, and not before, the Escrow Agent shall release to Buyer the LTSC Transfer Form and the check in the amount of $250.00 made payable to ADWR. 5. Assignment and Transfer of Credits Buyer shall be responsible for delivering to ADWR pursuant to the requirements of A.RS. § 45- 854.01(B): A. The ADWR LTSC Transfer Form, with Buyer's portion completed; and B. A check made out to ADWR in the amount of $250.00 as specified on the LTSC Transfer Form 6. Representations and Warranties The Parties hereby represent and warrant follows: A. Seller's Representations and Warranties i. Seller is a valid, duly authorized limited partnership in good standing under the laws of the State of Delaware, and the person signing below has authority to enter into this Agreement and bind Seller to its terms. ii. Seller has not previously alienated, assigned, transferred, pledged to a Certificate of Assured Water Supply or a Designation of Assured Water Supply, or otherwise encumbered the LTSCs, and Buyer shall have free and unrestricted use of the same in accordance with applicable law. iii. Seller shall take no action to sell, convey, transfer or assign any LTSCs to any other party that vwuld diminish the LTSCs in Seller's LTSA # 70- 411400 below 1,350.00 of CY09 LTSCs until this transaction is completed with Buyer or this Agreement terminates by its own terms. B. Buyer's Representations and Warranties Buyer is a valid, duly authorized municipal corporation in good standing under the laws of the State of Arizona, and the person signing below has authority to enter into this Agreement and bind Buyer to its terms. 7. Continuing Cooperation Seller and Buyer shall cooperate in good faith to ensure proper processing by ADWR of the LTSC Transfer Form and shall provide such additional information or materials, including but not limited to, any necessary ownership documentation or execution of application materials as may be requested or required to complete the transaction contemplated by this Agreement. 8. Default and Remedies If either Party defaults in performing its obligations hereunder, or if any of its representations and warranties is untrue as of the date this Agreement is signed by that Party or becomes untrue before completion of performance, the non-defaulting Party shall give 100027109.DOC / 31 AGREEMENT TO PURCHASE LONG -TERM STORAGE CREDITS 7/12/20119:44 AM Regular Council Meeting - July 19, 2011 - Page 62 of 190 -2- written notice pursuant to Paragraph 9 of this Agreement to the Party claimed to be in default. The Party receiving such notice shall have five business cloys to cure such default to the reasonable satisfaction of the other Party. If not cured, the non defaulting Party shall be entitled to terminate this Agreement and pursue any and all remedies available at law or in equity. 9. Notices All notices or other communications required or provided to be sent by either Party shall be in writing and shall be sent by United States Postal Service, postage prepaid, return receipt requested; courier; any nationally recognized overnight delivery service; facsimile transmission; or in person Any such notice shall be sent by overnight service charges prepaid, to U.S. Postal Service or private courier. Notice hand-delivered by courier for same -day delivery shall be deemed to have been given on the date of hand-delivery If any notice is transmitted by facsimile transmission or similar means, the same shall be deemed served or delivered upon confirmation of transmission Any notice or other document sent by any other manner shall be effective only upon actual receipt. All notices shall be addressed to the Party at the address below. If to the Town of N bran. Utilities Department Director Attn: Ms. DorothyOBrien 5100 W. Ina Road Tucson, Arizona 85743 Fax No.: 520 - 382 -2590 With a copy to: Town Attorney Attn: Mr. Frank Cassidy 11555 W. Civic Center Dr. Marana, Arizona 85653 Fax No.: 520 -382 -1945 If to Aqua Capital Management LP: Craig Bush, Managing Director Aqua Capital Management LP 444 Regency Parkway, Suite 300 Omaha, NE 68144 Ph (402) 934 -0066 10. Effective Date This Agreement shall not be effective until signed by both Parties. 11. Governing Law This Agreement shall be construed in accordance with the laws of the State of Arizona 12. Conflicts of Interest The Parties acknowledge that the Town may, pursuant to A.RS. § 38 -511 or any successor statute, within three years after execution of this Agreement, and without penalty or further obligation, cancel this Agreement if any person significantly involved in initiating, negotiating, securing. drafting or creating this Agreement on behalf of the Town is, at any time while the Agreement or any extension of the Aunt is in effect, an employee or agent of any other Party to the Agreement in any capacity or a consultant to any other Party of the Agreement with respect to its subject matter. 13. Complete Agreerrlent This Agreement constitutes the complete agreement among the Parties and supersedes all prior oral or written agreements concerning its subject matter. 14. Assignment This Agreement may be assigned by either Party only with the prior, written consent of the other Party. ( 00027109.DOC / 31 AGREEMENT TO PURCHASE LANG -TERM STORAGE CREDITS 7/12/20119:44 AM Regular Council Meeting - July 19, 2011 - Page 63 of 190 -3- 15. Counterparts This Agreement may be executed in counterparts. Each counterpart of this Agreement shall be deemed an original, but all counterparts shall constitute one agreement. 16. Binding Effect All terms of this Agreement shall be binding on all successors and assigns of the Parties. 17. Attorney's Fees If either Party breaches any provision of this Agreement, the breaching Party shall pay to the non-breaching Party all reasonable attorneys' fees and other costs and expenses incurred by the non-breaching Party in enforcing this Agreement or preparing for legal or other proceedings regardless of whether suit is instituted 18. Waiver. A waiver of any breach or default shall not be a waiver of any other breach or default. IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the last Party's signature date below. SELLER. BUYER: AQUA CAPITAL MANAGEMENT LP TOWN OF MARANA By By Printed Name: Craig Bush Printed Name: Dorothy OBrien Its: Managing Director Its: Utilities Department Director Dated 2011 Dated , 2011 ATTEST: Jocelyn Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney 100027109.DOC / 31 AGREEMENT TO PURCHASE LANG -TERM STORAGE CREDITS 7/12/20119.44 AM Regular Council Meeting - July 19, 2011 - Page 64 of 190 -4- ExHIBIT A: ADWR LTSC TRANSFER FORM Offiaal Arizora Departmit of Water Rmov s L oTTerm Storag? Credit Transfer Form to be inserted here- (00027109.DOC / 31 AGREEMENT TO PURCHASE LANG -TERM STORAGE CREDITS 7/12/20119:44 AM Regular Council Meeting - July 19, 2011 - Page 65 of 190 Exhibit A EXHIBIT B: WIRE INSTRUCTIONS Wiring Instnactions to: Aqua Capital Management LP Bank Wells Fargo Bank, NA San Francisco, CA 94163 ABA: 121000248 Account: 3367205303 Questions Contact: David Burton Chief Financial Officer Aqua Capital Management LP 402- 934 -0066 ext. 202 (00027109.DOC / 3) AGREEMENT TO PURCHASE LONG -TERM STORAGE CREDITS 7/12/20119:44 AM Regular Council Meeting - July 19, 2011 - Page 66 of 190 Exhibit B ARIZONA DEPARTMENT OF WATER RESOURCES Water Management Division 3550 North Central Ave, Phoenix, Arizona 85012 Telephone (602) 771 -8500 Fax (602) 771 -8689 LONG -TERM STORAGE CREDIT For Official Use Only TRANSFER FORM A.R.S. § 45- 854.01 DATE RECEIVED: The fee for a Long -Term Storage Credit Transfer is $250.00. Payment may be made by cash, check, or credit card (if you wish to pay by credit card, please contact the Recharge Program at 602 - 771 - 8599). Checks should be made payable to the Arizona Department of Water Resources. Failure to enclose the fee will cause the form to be returned. Fees for a Long - Term Credit Transfer are authorized by A.A.C. R12 -15 -103. [FOR SELLER] 70-411400 Aqua Capital Mangement LP Long -Term Storage Account No. Name of Seller 72- 558092 Arun Kottoor (402) 934 -0066 Facility Permit Number (where source water was stored) Contact Person/Telephone Number 73- 558 0 9 2.0900 444 Regency Parkway Drive STE 300 Water Storage Permit Number (authority to store source Mailing Address water) Omaha NE 68114 City/State /Zip Number of long -term storage credits (in acre -feet) transferred by type(s) of water and year credits were earned. Type: CAP acre -feet 1350 year earned 2009 Type: acre -feet year earned [FOR BUYER] Town of Marana, Utilities Dept If the transfer includes long -term storage credits earned Name of Buyer from the storage of Central Arizona Project (CAP) water in Dorothy O' Brien, 520 - 382 -2532 an Active Management Area (AMA), please state: Contact Person/Telephone Number 1. The date of Buyer's formation (if Buyer is a legal 5100 W In R entity): Mailing Address Tucson, AZ, 85743 2. The amount of groundwater withdrawn by Buyer in the AMA during the calendar year that the City/State /Zip credits were earned: 0 70- 411220.0000 Long -Term Storage Account No. (if any) a. The groundwater right number(s) the Buyer withdrew the groundwater pursuant to: n/a Regular Council Meeting - July 19, 2011 - Page 67 of 190 Revised 6 -2010 Pursuant to A.R.S. § 45- 854.01(C), the director of the Arizona Department of Water Resources may reject and invalidate any assignment of long -term storage credits in which the stored water would not have met the requirements for long -term storage credits as prescribed by A.R.S. § 45- 852.01 if the assignee had stored the water. The undersigned hereby certify, under penalty of perjury, that the information contained in this report is, to the best of their knowledge and belief, correct and complete and that they are authorized to sign on behalf of the party for whom their signature appears. Authorized Signature for Seller DATE Authorized Signature for Buyer DATE Managing Director Title Title Regular Council Meeting - July 19, 2011 - Page 68 of 190 Revised 6 -2010 .,, Q� N MRNA 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item C 5 From: Suzanne Machain , Human Resources Director Strategic Plan Focus Area: Not Applicable Subject: Resolution No. 2011 -75: Relating to Personnel; approving and authorizing staff to implement the Vacation Sell -Back Program for fiscal year 2012 Discussion: As part of the FY 2012 budget strategy, staff developed a one -time, voluntary "Vacation Sell - Back" option that would give employees an opportunity to convert accrued vacation leave into cash. For the past two fiscal years, and again for FY 2012, the budget has not been able to support employee compensation adjustments. The Vacation Sell -Back Program was developed as a means to allow employees access to cash compensation that would otherwise be held as a liability on the Town's financial statement and not cashed out until an employee either uses his or her vacation leave or severs employment from the Town. Participation in the program is voluntary and available to all classified and unclassified Town employees who are eligible to use vacation leave per the Town's personnel policies. During an election period of August 1, 2011 through August 31, 2011, employees may elect to cash out up to 40 hours of vacation leave in one -hour increments. Compensation received under this program is subject to income tax; however, it is not considered to be compensation for the purposes of Arizona State Retirement System or Public Safety Personnel Retirement System calculations. Payments under this program will be distributed on September 30, 2011. Financial Impact: The town -wide program will cost up to $346,000 and it is included within the fiscal year 2011- 2012 adopted budget. The actual cost of this program may be less than the amount described above as it is possible that not all eligible employees will choose to participate in this voluntary program. ATT ACHMENTS: Name: Description: Type: El Reso vacation sell - back —program for FY2012_(00027036).DOC Resolution Resolution El Final vacation Sell - Back _Program_Outline_(00027029).DOC Exhibit A - Program Outline Exhibit D Vacation—Sell—Back—Election Regular Council Meeting - July 19, 2011 - Page 69 of 190 (00026901).DOC Vacation Leave Sell -Back Election Form Backup Material Staff' Recommendation: Staff recommends that the Vacation Sell -Back Program be approved and that staff be authorized to implement the program as set forth in the attached program outline. Suggested Motion: I move to adopt Resolution No. 2011 -75; approving and authorizing staff to implement the Vacation Sell -Back Program for fiscal year 2012. Regular Council Meeting - July 19, 2011 - Page 70 of 190 MARANA RESOLUTION NO. 2011-75 RELATING TO PERSONNEL; APPROVING AND AUTHORIZING STAFF TO IMPLEMENT THE VACATION SELL -BACK PROGRAM FOR FISCAL YEAR 2012 WHEREAS the Town Council is authorized by A.R.S. § 9 -240 (A) to control the finances of the Town; and WHEREAS the Town Council is authorized by Section 3 -3 -3 of the Marana Town Code to adopt personnel rules, regulations and policies that follow the generally accepted principles of good personnel administration and which may be modified or changed from time to time; and WHEREAS the Town Council finds that authorizing staff to implement the Vacation Sell -Back Program for fiscal year 2012, as described in the Vacation Sell -Back Program Outline is in the best interests of the Town and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Town of Marana hereby approves the Vacation Sell -Back Program for fiscal year 2012 as described in the Vacation Sell -Back Program Outline, attached to and incorporated by this reference in this resolution as Exhibit A. 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 Vacation Sell -Back Program. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19 day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 71 of 190 100027036.DOC /} AL M MA RMA VACATION SELL -BACK PROGRAM PROGRAM OUTLINE FISCAL YEAR 2012 The purpose of the Vacation Sell -Back Program is to allow employees an opportunity to voluntarily cash out up to 40 hours of accrued vacation leave by selling it back to the Town. This one -time conversion of vacation leave to cash shall apply to FY 2012, subject to the timelines described in this Program Outline. Eligibili All classified and unclassified Town employees who are eligible to request to use vacation leave per Section 4 -1 -5 of the Town's Personnel Policies and Procedures are eligible to participate in this program. Definitions 1. Election Period: August 1, 2011 through August 31, 2011 2. Eligible Employee: Employees who have served a minimum of 180 days of consecutive employment as a regular classified or unclassified, full- or part-time employee as of August 31, 2011 3. FY 2012: July 1, 2011 through June 30, 2012 Policies and Procedures Election 1. Eligible employees who elect to sell accrued vacation leave back to the Town must notify the Finance Department/Payroll of their decision to sell the leave during the election period utilizing the approved election form. 2. The Finance Department/Payroll must receive the election form during the election period and no later than close of business (5:00 p.m.) August 31, 2011. Late notifications and notifications not received on the approved election form will not be considered. 3. Elections are irrevocable after the closing date and time of the election period. Regular CoAi� 19, 2011 - Page 72 of 190 Sell -Back Parameters /Requirements 1. Employees may sell up to 40 hours of accumulated vacation leave. 2. Leave must be sold in one -hour increments. 3. Employees who sell vacation leave back to the Town remain eligible to use vacation leave pursuant to the Town's Personnel Policies and Procedures. Payout of Vacation Leave 1. Vacation leave will be paid at the employee's regular base rate of pay and will be subject to regular mandatory payroll deductions. 2. Payments made under this program will be made by a separate pay check which will be distributed on September 30, 2011. 3. Pay received by employees pursuant to this program is considered to be compensation for income tax calculations. 4. Pursuant to state statute, pay received by employees pursuant to this program is not considered to be compensation for purposes of Arizona State Retirement System (ASRS) calculations (A.R.S. § 38- 711(7)) or Public Safety Personnel Retirement System (PSPRS) calculations (A.R.S § 38- 842(12)). Miscellaneous Employees who received additional hours of personal leave in calendar year 2011 pursuant to Section 4- 3 -2(C) of the Personnel Policies and Procedures and who elect to sell back vacation leave pursuant to this program will not be eligible to transfer sick leave hours to vacation leave per Section 4 -2 -9 of the Personnel Policies and Procedures during calendar year 2011. Regular Co "IWJ�ly 19, 2011 - Page 73 of 190 VACATION SELL -BACK PROGRAM ELECTION FORM The purpose of the Vacation Sell -Back Program is to allow employees an opportunity to cash out up to 40 hours of accrued vacation leave by selling it back to the Town. This one -time voluntary opportunity to convert vacation leave time to cash shall apply to FY 2012. To take advantage of this opportunity, employees must complete and submit this form to Payroll no later than 5 :00 p.m. on August 31, 2011. An election to convert leave time to cash is irrevocable after the closing date and time of the Vacation Sell -Back Program election period. TO BE COMPLETED BY THE REQUESTING EMPLOYEE ONLY: I, of the request Employee Name Department to convert hours of accrued vacation leave to cash. Number of hours in whole hour increments F Dote: Payment under this program wnll be ��e a sepate check ur�ll be first "routed bet 3p, 2q1':. have read and understand the Vacation Sell -Back Program Outline and further understand and acknowledge that the following statements are true: A. The election period for the Vacation Sell -Back Program is August 1, 2011 through August 31, 2011. B. Payroll must receive this election form during the election period and no later than close of business (5:00 p.m.) August 31, 2011. C. Late notifications and notifications not received on the approved election form will not be considered. D. Employees may sell up to 40 hours of accumulated vacation leave in one -hour increments. E. Elections are irrevocable after the closing date and time of the election period. Name: Please print clearly Signature: Date: For Official Use Only ❑ Approval ❑ Disapproval Reason for disapproval: Date Request Received E-mail confirmation sent: Reguljb l nj - July 19, 2011 - Page 74 of 190 MI STUDY SESSION MINUTES 11555 W. Civic Center Drive, Marana, Arizona 85653 Council Chambers, June 14, 2011, at or after 6:00 PM Ed Honea, Mayor Herb Kai, Vice Mayor David Bowen, Council Member Patti Comerford, Council Member Carol McGorray, Counell IVlember Jon Post, Council Member Roxanne Ziegler, Council Member STUDY SESSID CALL TO ORDER AND ROLL CALL, Called to order by Mayor Honea at 6.01 pan There was a q�n present, with Council Member Ziegler excused. PLEDGE OF ALLEGI NCEII VOCATIONJMOMEN "OF SILENCE Led by Mayor Honoa, APPROVAL OF AGENDA Motion to a , prove moved by; Council kii+n er Post, second by Council Member McGorray Motion carried unanimously. DISCUS,SION/DIRECTIO /POSSIBILE ACTION 1: Presentation: Relating tp,,:Community Facilities Districts; discussion and direction regarding the Saguaro Springs Community Facilities District, financing alternatives and elements of the c"pted Community Facilities District policy Presented by Erik Montague, Frank Cassidy and Mike LaVallee, managing partner with Stone and Youngberg. Mr. Montague acknowledged Grayhawk developer, Brian Baehr and his financial advisor, Carter Froelich, DPFG in Phoenix. Mr. Montague covered the general agenda for the presentation including the history of the Saguaro Springs CFD, an outline of the Saguaro Springs CFD's financing objectives, the town's adopted CFD policy, possible amendment to the town's CFD policy, a comparison and contrast of general obligation bonds and special assessment bonds, CFD financing alternatives and the characteristics of the tax and assessment impact on homeowners. Mr. Montague noted that the specific purpose of the session was to follow up on the April 26, 2011 presentation. Regular Council Meeting - July 19, 2011 - Page 75 of 190 1 June 14, 2011 Council Meeting Minutes Frank Cassidy noted that the Saguaro Springs CFD was formed in 2007 when the owners /applicants with Empire and KB Home. At the time there was a formation agreement which was approved by not signed by KB Home. No bonds were ever sold by Saguaro Springs CFD. Empire filed for bankruptcy in the Spring of 2008. Grayhawk bough the bank's note and foreclosed on Empire's interest. Grayhawk now owns all of Saguaro Springs except for 70 lots formerly owned by KB Home and one block on the east side up against the hills, which they are in the process of acquiring. The project is now called Saguaro Bloom. None of the bond money has ever been used to clear the property. The town has cleaned up tumbleweeds at its expense. In terms of uses of the bond proceeds, for the first phase there is a,lot of remediation work that the developer will expend - $6 -8M. The initial infrastzeture was done by Empire for about $30 -40M. There is about $15M that must bepent to build two lanes immediately adjacent to their project to connect with TwPeaks Rgad. Lambert Lane, Airline Road and public park improvements also fall under this cat Mr. Cassidy also went on to explain how the CFD policy works. was"t,osecure benefits of the 1988 Community Facilities Act. Forms of debt financing include general obligation bonds which appear on the tax record as,a secondary property taxxt pecial assessment bonds which are presented to homeowneas periodic assessment payments; and revenue bonds, which are designated for a speclfi 4i�tienue source. The debt is not intended to impose an unreasonable financial burden on f t*e CFD homeowners. Mr. Montague continued regarding current fdrms of financing date, only general obligations bonds have been issued — for OladdetvFarms C171 ;`the target tax rate is $2.50 of $100 assessed value. No special assessi,n,aM'Vbonds have been issued. He went on to describe the characteristics of general pbligation bonds. Mike LaVallee presented some statistics on b through a CFD. There are approximately 12 1 s that do CFDs in the state in excess of about $650M. Approximately 70% of ihdse, have: en general obligation bonds; 70% special assessment bonds Many CA s, issue bot - 'Characteristics of special assessment bonds are that they are payab special assessments on the land which benefits the improvements. They ate :ft ed at ' amount before bonds are issued. Cash prepayment is allowdd ; -A special distr16t engineer allocates assessments based on the benefit received. *y,are collecte41twice a year by the town or the CFD. The lien position is junior to property taxes but" ead of the mortgage lender. No election is required; landowners havepotest and objection rights before assessment, and debt limitations (no more than 60% of rnaa f value of the project) and underwriting criteria vary by appraisal requirements and financing assumptions. Mayor Honea noted that previously, when the town started doing CFDs, there was a 4:1 ratio that they would not allow to be exceeded. Mr. LaVallee referred to the characteristics of special assessment bonds. The town has a 4:1 on assessment bonds. He went over assessment financing assumptions using examples of different assessments. He is of the understanding that the developer doesn't want to sell the upper amount of debt right away, but to phase it in over time which you can do with special assessment bonds but not with general obligation bonds. He noted that this is consistent with what he's seeing in the current market. Council Member Bowen asked about fire sale value. Mr. LaVallee then referred Council to a sample tax bill which had included in his handout showing a special assessment calculation on a Regular Council Meeting - July 19, 2011 - Page 76 of 190 2 June 14, 2011 Council Meeting Minutes $225K home. He also showed a comparison of the same home value for each of the three CFDs in Marana at $3K, $4K and $5K special assessment lien amount. Mr. Cassidy noted that the town as the boards have not made any amendments to its CFD policy, but each of the three CFDs in Marana have had special bond assessments — the RedHawk Canyon #I and #2 and Dove Mountain. The Gladden Farms CFD issued general obligation bonds. He stated that the town is close to accepting a formal application from the developer which means that they will have to pay the $75,000 fee, but would like to know the Council's feelings about layered bonds (special assessment and general obligation). The experience of the past has made staff wonder whether reliance on general obligation bonds make a lot of sense. After considerable discussion by Council and responses from Mr. Baehr, Mr. LaVallee, Mr. Cassidy and Mr. Montague, Mr. Davidson recommended that staff craft several options for Council consideration and lay out what a benited rate 6, veld look like. He acknowledged that there's a concern about property and ultimately pesidential citizens help pay for all of this. His hope is that the project be successful ald that everyone is able to keep the momentum going- 2: Presentation: Relating to Mayor and Council; staffpresentation and discussion with Council regarding laws and policies that to Councih embers, including Arizona state laws regarding open meetings, conflicts„of interests, pufflic records, incompatibility of office, nepotism, financial disclosure'and limitations on e66 inment and the Town of Marana Code of Principle- and Ethics - Centered Giiernance Mr. Davidson began nth th6'implementatian of the Strategic Plan, in which there is a goal to find ways to )Improve out.operations a raise the bar of how we operate as an organization. The '6414 414 adopted a Council 66dc of Ethics, and from time to time it's important to get it out and, review katid make., sure it's fresh and put into daily practice. Tonight isalra i e�to ask qu tions and get-a refresher course. Frank Cassidy noted that this would be f for e + yone except Council Member Bowen. He gave an overview of the open moeting law, c flicts of interest (pecuniary or proprietary interests);ttblic records, Ming that dust about everything done in government is open to public review, nepotism and the distinctions, financial disclosure and limitations on entertainment an d„acceptin &ifts from lobbyists or persons who are offering gifts in exchange for pos�4ble voting in favor of a project. Executive Session pursuant to A.R.S. §38- 431.03 (A)(3), Council may ask for discussion or consultation for legal advice with the Town Attorney concerning any matter listed on this agenda. ADJOURNMENT Motion to adjourn moved by Council Member McGorray, second by Council Member Post. Motion carried unanimously. The meeting was adjourned at 7:59 p.m. Regular Council Meeting - July 19, 2011 - Page 77 of 190 3 June 14, 2011 Council Meeting Minutes CERTIFICATION I hereby certify that the foregoing are the true and correct minutes of the Marana Town Council meeting held on June 14, 2011. I further certify that a quorum was present. Jocelyn C. Bronson, Town Clerk E Regular Council Meeting - July 19, 2011 - Page 78 of 190 4 June 14, 2011 Council Meeting Minutes ,_r-t� MA REGULAR COUNCIL MEETING MINUTES 11555 W. Civic Center Drive, Marana, Arizona 85653 Council Chambers, June 21, 2011, at or after 7:00 PM Ed Honea, Mayor Herb Kai, Vice Mayor David Bowen, Council Member Patti Comerford, Council.-, Member Carol McGorray, Coundi'Member Jon Post, Council Member Roxanne Ziegler, Council Member REGULAR COUNCIL MEETING � CALL TO ORDER AND ROLL CALL Mayor Honea called the meeting to order at QI�.m. All Council Members were resent. p � ks; PLEDGE OF ALLEG RNVOCATION/MOMENT OF SILENCE Led by Mayor Honea: APPROVAL OF AGENDA Motion to,atpp " >" moved by' uncil Member McGorray, second by Council Member Ziegler ; W tion cam unanimously. CALL TCd THE PUBLIC David Mo *W spoke regarding the wastewater issue and the County's five by five plan. PROCLAMATIONS The Proclamations were read by Ms. Bronson and presented by the Mayor. The Mayor further commented on his long- standing personal relationship with Billy and gave some anecdotal remarks. Mr. Schisler thanked Council for their tribute and their leadership in continuing to grow Marana responsibly. Billy Schisler Proclamation Parks and Recreation Month Proclamation MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS Council Member McGorray reported on a meeting she attended to get rail service between Tucson and Phoenix. Regular Council Meeting - July 19, 2011 - Page 79 of 190 1 June 21, 2011 Council Meeting Minutes Council Member Comerford thanked everyone for their condolences on the death of her father June 12th, former Council Member Jim Blake. Mayor Honea reported on the annual meeting of CAAG in Payson which he and Gilbert Davidson attended Friday and Saturday. CAAG is one of the Council of Governments in Arizona. He stated that it was a great event, and noted they are very supportive of Marana. MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS Mr. Davidson reminded Mayor and Council, staff and the public that Imagine Greater Tucson is hosting an event at Twin Peaks Elementary School Wednesday night from 6:00 to 8:30 p.m. Imagine Greater Tucson is a regional effort to look _at ,visioning for our greater community and the impacts of regional planning. Any and all -are welcome to attend. In response to a question from Council Member Ziegl3_ Mr. Davidson said that Keri Silvyn, an attorney with Lewis & Roca, is spearheading theaeffort as a result of a similar process in Utah.' PRESENTATIONS CONSENT AGENDA Motion to approve moved by Council Member Post, send by Council Member Ziegler. Motion carried unanimous C 1: Resolution No. 2011 -59: Relating,tc lnployment; 'a' pparoving and authorizing the Mayor to execute a Second Amendment to EntplQpent Agreement with Town Manager Gilbert Davidson C 2: Resolution No. 2 -60 relating to the Police Department; approving and authorizing the Town „Manager - execute a Grant Agreement (HT20 -10 -1711) with the City of Tucson to recel funding under the Hioyffitensity Drug Trafficking Area Grant Program x C 3: Resolution Ntr l 1 61 � Relating to the Police Department; approving and authorizing the Town 1Vh�ager to execute a Grant Agreement (HT21 -11 -1711) with the City of �'ucson to receive Minding under the High Intensity Drug Trafficking Area Grant Program z C 4: Ordinance 46_2011_:14: Relating to Administration; amending Marana Town Code Title 3 "Adm his"t afion,” amending section 3 -1 -3, deleting section 3 -2 -13 and renumbering section: =2 -14; removing the position of police commander from the town's unclassified service C 5: Resolution No. 2011 -62: Relating to Community Development; approving and authorizing an intergovernmental agreement with the Regional Transportation Authority of Pima County for the sharing of costs involved in the design and construction of bus shelters and related infrastructure within the Town of Marana C 6: Resolution No. 2011-63: — Relating to Community Development; approving and authorizing an intergovernmental agreement with the University of Arizona College of Regular Council Meeting - July 19, 2011 - Page 80 of 190 2 June 21, 2011 Council Meeting Minutes Architecture and Landscape Architecture for the design and construction of bus shelters within the Town of Marana C 7: Minutes of the April 19, 2011 regular meeting and the June 7, 2011 regular meeting LIQUOR LICENSES L 1: Relating to Liquor Licenses; recommendation to the state liquor board regarding a New Series #4 (Wholesale) liquor license application submitted by Bryant S. West on behalf of Cordon Distributors located at 6260 N. Travel Center Drive, Ste K -3 Ms. Bronson informed Council that the applicant had requested to the item withdrawn from consideration at this time as he is planning to ahendethe application with the state liquor board. Staff will bring the item back for cons> ation at a future date. BOARDS, COMMISSIONS AND COMMITTEES B 1: Resolution No. 2011 -64: Relating to Boards C-binmissions and? �mmittees; re- appointing Gary Davidson, Scott Mundell and Marsha Johnson Regrutto t ,the District Board of the Dove Mountain Resort Community <F�cilities district Ms. Bronson noted that staff is recommending appro Motion to approve moved by Council Mher Post, second Council Member McGorray. Mayor Honea raised the issue x with Cpuncil that thc�Dove x.. Mountain/Redhawk Canyon CFDs are the only Os within the town where citizens — and not the Council acting, as the Board of the CFD cam% authorize bonds. Council Member Ziegler asked `fth �ad been an - incident or areason to be concerned. Mayor Honea noted that to, date there h been no problem; he just wanted Council to be aware of that situation. Mr O rison noted that this actin is necessary tonight to approve the appointments to fulfill requirements under state" law. If a change needs to be made, staff will come h; t Council v ith a recommendation. Motion carried unanimously. B 2: , # -VBLIC HEAR G: Resolution No. GFCFD 2011 -02: [ Marana Town Council acting ast,Gladden Farms Community Facilities District Board of Directors]: A Resolution 8f he District Board of the Gladden Farms Community Facilities District, Pima County, Afizona, approving the final budget for the Gladden Farms Community Facilttzt_ District for the fiscal year beginning July 1, 2011 and ending June 30, 2012 i Chairman Honea opened the meeting for public hearing. Presented by Erik Montague, who noted that the tentative budget was brought before Council on May 24, 2011, which was approved. In accordance with statute, proper notice was given of the public hearing. After hearing comments, the Board is asked to approve the final budget which establishes the overall budget of $1,834,440. In relation to that will be the establishment of a levy, a secondary property tax of $2.80 attributable to each $100 of assessed valuation. That will Mr. incorporate 2.50 for debt service and .50 for operations and maintenance. � p Montague noted that the overall budget has had only a modest increase over the previous year. After questions from the Board, Chairman Honea closed the public hearing. Regular Council Meeting - July 19, 2011 - Page 81 of 190 3 June 21, 2011 Council Meeting Minutes Motion to approve moved by Board Member McGorray, second by Vice Chairman Kai. Motion carried unanimously. B 3: PUBLIC HEARING: Resolution No. GFCFD2 2011 -02: [Marana Town Council acting as the Gladden Farms (Phase II) Community Facilities District Board of Directors]: A Resolution of the District Board of the Gladden Farms (Phase II) Community Facilities District, Pima County, Arizona, approving the final budget for the Gladden Farms (Phase II) Community Facilities District for the fiscal year beginning July 1, 2011 and ending June 30, 2012 Chairman Honea opened the meeting for public hearing. Presented, by Erik Montague, who noted that the tentative budget was brought before Counctl;on May 24, 2011, which was approved. In accordance with statute, proper notice wag-"', as liven of the public hearing. In anticipation of adoption, it is included in the recommendatlort maintain a $.30 maintenance and operation levy to defray the costs ofhe" district. Staff is not anticipating any significant change to this CFD. Chairman Honea asked for quesns. Hearing none, he closed the public hearing. Motion to approve moved by Board Member Ziegkr sec6rrd by Board Member Post. Motion carried unanimously. B 4: PUBLIC HEARING: Resolution No, SSCFD 2011�0 : [Marana Town Council acting as the Saguaro Springs Community Facrlities District Bid of Directors]: A Resolution of the District Board of the Saguaro $pritn Corn m1 unity Facilities District, Pima County, Arizona, approving the final budget for f aguaro Springs Community Facilities District for the fiscal yearbeginning July 1, 2011 and ending June 30, 20f��. Chairman Honea opened the meeting for public hearing. Presented by Erik Montague, who noted. that Ie tative budget was brought before Council on May 24, 2011, which was approved. In aidance With statute, district staff provided proper notice of the publt hearing. Within't e ,final budget, it does provide for the capacity for the issuance of debt bud not the authorit ', to isstt&that debt. District staff would be required to come back before -the Board to 15" ent items related to the budget. This budget does establish a levy of $.30 fog erations and maintenance for costs attributable to maintain the district. There being no co ri ents liom the public or the Board, Chairman Honea closed the public hearing. Motion to approve moved by Vice Chair Kai, second by Board Member Bowen. Motion carried unanimously. B 5: PUBLIC HEARING: Resolution No. VFCFD 2011 -02: [Marana Town Council acting as the Vanderbilt Farms Community Facilities District Board of Directors]: A Resolution of the District Board of the Vanderbilt Farms Community Facilities District, Pima County, Arizona, approving the final budget for the Vanderbilt Farms Community Facilities District for the fiscal year beginning July 1, 2011 and ending June 30, 2012 Regular Council Meeting - July 19, 2011 - Page 82 of 190 4 June 21, 2011 Council Meeting Minutes Chairman Honea opened the meeting for public hearing. Presented by Erik Montague, who noted that the tentative budget was brought before Council on May 24, 2011, which was approved. In accordance with statute, district staff provided proper notice of the public hearing. The budget before the Board would continue or maintain a levy of $30 per $100 of assessed valuation to maintain the district. As of now, there is no outstanding debt or no bonds have been issued for this district. This budget does provide the capacity for future debt issuance but not the authority to issue the debt without coming back to the Board. There being no comments from the public or the Board, Chairman Honea closed the public hearing. Board Member Bowen asked what is happening as far as sorting out the ownership issues on this development. Mr. Montague responded that staff has been in various discussions with some of the organizations that own pieces of that. Staff is furthering those discussions to maintain the properties. r s Motion to approve moved by Board Member Ziegler, second brard Member McGorray. Motion carried unanimously. s� COUNCIL ACTION A 1: Ordinance No. 2011.15: Relating to Buld; adopting the building an review and building permit fee schedule and fee calculatii #"e d; and designating an effective date Presented by Keith Brann, noting that this also relates to the next item on the agenda. He reviewed the ordinance brought forward, tonight- noting that 1k-,,w basically a cleaned up version of what was brought before Council last year Ue� explained the building fee process and the method of calculation based, owa variety;, components. He noted that one of the items staffis^lokig to adjust is the required°publication. The International Code Council publishes fees changes twice a year. For most of the town's fees, staff would prefer to do that once a year, which gives staff as well as the homebuilding industry more certainty that fees wont, be changed twice annually. So the ordinance will incorporate It" g to. change the fee only e a year, using the February valuation and implement at the fisc ' dear — kind of how impact fees are done. Another check is against, bgilding averages' with a regional variance. Staff will be asking to drop that because it's statistically insignificant and use national averages instead. The final change is to adjust the lower tiered costs up to $50 and catch up to the current valuations at the $25K level, f Resolution No. 2011 - ` Relating to Building; declaring the building plan review and building permit fee schedule and fee calculation method as a public record filed with the Town Clerk Motion to approve Ordinance No. 2011.15 and Resolution No. 2011 -65 moved by Council Member McGorray, second by Council Member Bowen. Motion carried unanimously. A 2: Ordinance No. 2011.16: Relating to Finance; adopting the amended Town of Marana Comprehensive Fee Schedule and designating an effective date Regular Council Meeting - July 19, 2011 - Page 83 of 190 5 June 21, 2011 Council Meeting Minutes Presented by Erik Montague, who began with a brief overview and also in conjunction with the previous item. This item is the third comprehensive effort since the fee schedule was instituted. The overarching goal is cost - recovery and making sure the public as well as businesses are getting the level of service they expect. This process began with department level reviews this spring. Some fees were changed and some were eliminated or stayed the same. SAHBA and MPA were invited to review the recommendations from a practical application standpoint. Staff is working with the MPA to establish some next steps that they have for the next major update. For the sake of consistency with the item just heard, Mr. Montague asked that if the item moves forward, that the effective date be modified to be the 31 day after adoption because of the possible concerns of implementing in the middle of a week. Resolution No. 2011 -66 Relating to Finance; declaring the ,1tlded Town of Marana Comprehensive Fee Schedule as a public record filed wit, the TI wn Clerk Motion to approve Ordinance No. 2011.16 and Resolution No. 2011 with the recommended change moved by Council Member Ziegler, second by `odancil Member McGorray. Motion carried unanimously.,., , A 3: Resolution No. 2011 -67• Relating to Personnel., a roving a salary schedule for classified employees for fiscal year 20.11 -2012 Presented by Suzanne Machain who noted this` her annual r'04uest. There were a handful of title changes, no salary changes and orte re,.chadge. Council Member Ziegler asked about the position of "Commander," whips. Machain noted had been removed. The Police paptainJ6h the classified salary schedule replaces the Commander position. The ComM` der position was more'g` eneral. The Captain position is more descriptive of the rankirl between Chief and Lieutenant. Motion to ado "Moved by Council Member McGorray, second by Council Member Ziegler lotion carrt dinanintvusly. A 4 Resolution No. 20168• Relatin to Personnel; approving a salary schedule for temporary eittployees for fiscal year 2011 -2012 Presented by Ms'Mchaln,wvho noted that there were no changes to the schedule — it remains as it did last r` This is a formal request for adoption for the new fiscal year. Motion to approve moved by Council Member Post, second by Council Member Comerford. Motion carried unanimously. A5: PUBLIC HEARING: Resolution No. 2011 -69 Relating to Budget; adopting fiscal year 2011 -2012 final budget Presented by Erik Montague. If approved, this is the final step in the process for the beginning of a new fiscal year. This measure would formally allow the town to adopt a budget of just under $127M, roughly 25 percent less than it was in the previous fiscal year. David Morales addressed Council regarding whether there is anything in the new Regular Council Meeting - July 19, 2011 - Page 84 of 190 6 June 21, 2011 Council Meeting Minutes budget to build a new road in Marana Estates. Mr. Montague addressed this question by noting that a comprehensive five -year capital improvement plan. The specific project has not been identified within the funding cycle as far as next year's funding level. Staff has been working very closely with the neighborhood to identify strategies to identify a solution to them. Depending on the outcome, that would drive any change to reallocate any existing authorization. Mr. Morales noted that the question had been answered. However, he started quoting an article he wrote for the Marana Weekly. Mayor Honea asked that Mr. Morales' comments be confined to the question asked and answered and not to editorialize. Mr. Davidson addressed Council, noting that staff has been working on this issue since it was raised. The capital improvement project budget was completed when the issue of building a new road was put forth for Council consideration by the neighbors. There is some question as to whether a new road is e" correct option to mitigate the neighborhood concerns. Once a thorough evaluation of the situation has been conducted with staff and the neighbors, staff will brio g this, Issue back to Council for further discussion. Council Member Comerford ask cl that th &J ,ssue be addressed as quickly as possible. Mr. Davidson responded thota bonsiderable'Cl.-fibrt is being made to do that. On a separate note, Council Member`Ziegler stated that staf not get raises again this year, many of whom deserved to based -on performance, and that is one of the reasons the town is fiscally sound. Mayor HoaeaMeclared the public hearing closed. Motion to approve the FY 2011 -12 b14 moved by Couii ber Post, second by Vice Mayor Kai. Motion carried unanimously A 6: Relating to Mayor and selection of Vice MA' yor Presented by Ms. Biro, son, who'noted that the Town Code provides for the selection of the Vice Mayor after each, regular general election of the Council. Council Member Kai was selected to serve as Mayorfiq a two -year term on June 16, 2009, and his term has expired ItsCquncil's'pleasure to re= Appoint or appoint a member of the Council as Vice Mayor for a twa =$far term' '. ending June 30, 2013. Vice Mayor Kai moved to - nominate Council Member Comerford to serve as Vice Mayor, second by Council Member Post. Motion carried unanimously. Mayor Honea not.0d that 0buncil Member Kai has been a personal friend as well as Vice Mayor for many y6 And thanked him for his service to the town. ITEMS FOR DISCUSSION/POSSIBLE ACTION D 1: Legislative /Intergovernmental Report: regarding all pending state and federal legislation and report on recent meetings of other legislative bodies There were no items for discussion. Regular Council Meeting - July 19, 2011 - Page 85 of 190 7 June 21, 2011 Council Meeting Minutes EXECUTIVE SESSIONS Mayor Honea called for a motion to go into executive session on Items E 2 and E 3. Motion to go into executive session on Items E 2 and E 3 moved by Council Member Post, second by Council Member McGorray. Motion carried unanimously. Council left the dais at 8:13 p.m. Council returned to the dais at 9:08 p.m. E 1: Executive Session pursuant to A.R.S. §38- 431.03 (A)(3), Council may ask for discussion or consultation for legal advice with the Town Attorney concerning any matter listed on this agenda. E 2: Executive Session pursuant to A.R.S. § 38- 431.03(A)(3)'(4) and (7), discussion or consultation for legal advice with the Town's attorneys aud"discixs ion and to consider its position and instruct the Town Manager and staff concerning (1) tho,Iawsuit entitled Town of Marana v. Pima County/Pima County v. M rana.(consolidate ,,Maricopa County Superior Court No. CV2008- 001131, (2) pending legal issues, settoement discussions and contract negotiations relating t61 ho, transition of Marana wastewater collection and treatment to the Town of Marana E 3: Executive session pursuant to A R.S. § 38 -431 03(A�) and (4), discussion or consultation with the town's attorney § for legal advice and,Io consider the town's position and instruct its attorneys regarding Marina's application for a Pima Association of Governments 208 amendment Frank Cassidy asked for u motion from Council to proceed as directed in executive session. Motion moved by Council Member Post, second by Vice Mayor Comerford. Council Member Kai qs, excused. Motion carried 6 -0. FUTURE AGE MA ITEMS , . . ADJO[.1MENT Motion fd;`udjourn moved t Council Member Post, second by Vice Mayor Comerford.. Motion carried, unanimously 6 -0. The meeting wasp, urned at 9:08 p.m. CERTIFICATION I hereby certify that the foregoing are the true and correct minutes of the Marana Town Council meeting held on June 21, 2011. I further certify that a quorum was present. Jocelyn C. Bronson, Town Clerk Regular Council Meeting -July 19, 2011 -Page 86 of 190 8 June 21, 2011 Council Meeting Minutes M A 0 STUDY SESSION MINUTES 11555 W. Civic Center Drive, Marana, Arizona 85653 Council Chambers, July 12, 2011, at or after 6:00 PM Ed Honea, Mayor Patti Comerford, Vice Mayor David Bowen, Council Member Herb Kai, Council Memb6 a Carol McGorray, Counci NIcmber Jon Post, Counci "Member Roxanne Ziegler, Council Member STUDY SESSION,,,,, CALL TO ORDER AND ROLL CALL- Mayor Honea called the meeting to order of 6 Q =,p.m. All Council Members were present. PLEDGE OF ALLEG.1 CEATNVOCATION /MOMENT OF SILENCE Led by Mayor Honea: APPROVAL „OF AGENDA :. Motion to::�"A64 -owed by Council Member Post, second by Council Member McGorrpy. Motion cak ed u ""' imously. DISCUS§j0WDIRECTI6N/POSSIBLE ACTION 1: Presentation: Relating to ,Streets; a presentation on the current conceptual design for Tangerine Roan,° y Introduced by Scott Lska, who introduced Alejandro Angel from Psomas for the presentation. Mr. Leska noted that this is one of the RTA projects under study. He thanked Council and Barbara Johnson for their support in successfully completing past and current RTA projects. Dr. Angel's presentation focused on project description, traffic volumes, travel speeds, access management, and road section and alignment. He noted that this project — widening Tangerine to four lanes the 10 miles of roadway from I- 10 to La Canada would be sufficient through 2040. $74M has been allocated for 2011- 2026, with Marana's contribution to be $21 AM. He then touched on the significant drainage, right of way, utility coordination and environmental challenges. Regular Council Meeting - July 19, 2011 - Page 87 of 190 1 July 12, 2011 Council Meeting Minutes Dr. Angel noted that there has been a change in traffic patterns since the Twin Peaks Road extension was built. Volumes are decreasing from Dove Mountain Blvd. to I -10 and increasing from La Canada to Dove Mountain Blvd. Significant growth is expected through this corridor — residential and retail. Travel speeds are higher than the posted speed limits. He noted the posted speed limits should be within 5 mph of the 85 percentile speed of free - flowing traffic. Dr. Angel then discussed the benefits of access management, which is to improve safety, increase roadway capacity and encourage organized growth. There are some challenges with alignment on both the north and south side of Tangerine from TRICO and TEP. The preferred alignment would be similar to the current alignment as it is less expensive and gives equal acquisition from both sides of the road and allows for potential future expansion to six lanes.., There was some discussion on the benefits and detraction of providing curbing and when and where it should be used. Dr. Angel concluded his presentation with landscape design — consistent with the Dove Mountain area using sustainable, native plants and ,c -46 He also disc> spd potential widening to six lanes and some issues that will need attention in the future�goncerning the implementation plan, drainage alternatives at the11w,f"t end athe project, inc,u�ifig wildlife crossings, noise analysis and right of way heeds., Council commented in the appearanct,,of the wildlife corridors, curbing, project control and funding. Keith Brann responded that the county is;into the project for !�6.5M. There have been no annexations by Marana since 2003 in this air a, prior toifie RTA passing. He believes that Oro Valley has a sitnilarltory in this area. The cost estimates put in the RTA ballot should stand- M r. Davidson noted that), ith regard to financing, there have been a number of articles m tht newspaplers recently wherein the County Administrator had sent a letter to the chairman of the House Transportation Committee suggesting that the state take in thew, "e' foadway. "He., wanted to make sure that there is clear direction to staff to proceed_yv th design dwthis road. If Tangerine Road was put into the state system, the town, 64ldn't need to' proipeed with this. Scott Leska noted that the town will be proceedin. with the phasing of the project as if it were going to be under the town's control. Vice Mayor Conierwd asked if the plan is for Council to decide whether to keep control of Tangerine, ,Road and whether to move forward with the plans as presented. If it is, she believes the pin is in line with Council's vision. Council Member Post asked if this is being designed with the Tangerine interchange at I -10 in mind. Mr. Brann noted that the design is to connect the four lane road to the current alignment. Should the Tangerine interchange project resurface, it can tie in to the current project. If the new TI is there first, the town can tie the four lane project into that project. Mr. Leska added that this project is being built to federal standards, so that if federal dollars become available, the design won't have to be changed to accommodate federal guidelines. Mr. Brann noted that any condemnations would have to be done under the authority of each jurisdiction. Regular Council Meeting - July 19, 2011 - Page 88 of 190 2 July 12, 2011 Council Meeting Minutes Motion moved by Vice Mayor Comerford to continue with the design of Tangerine Road as presented, second by Council Member McGorray. Motion carried unanimously. 2: Resolution No. 2011 -70: Relating to Boards, Commissions and Committees; approving appointments /reappointments to the Planning Commission Mayor Honea announced an executive session was needed on this item. Motion moved by Council Member Post, second by Council Member McGorray to go into executive session. Motion carried unanimously. Council left the dais at 6:52 p.m. Council returned to the dais at 7:17 p.m. M . 3 Mayor Honea thanked all the applicants who submitted fotthe open positions and noted that Council has had an opportunity to review the applications and is rely to move forward with the appointments. Council Member Post moved to appoint Terr, h*rmannp�1Vorman Fogel, nlleen Hancock and Marcia Jakab to four year appointments ex Wng 2015 and Steve Miklosi to a two-year appointment expiring June 30,3, second by Council Member Ziegler. Motion carried unanimously. 3: Administration of Oaths of Office for Planning & Zoning Cnmissioners Ms. Bronson administered -the oaths of office,tc Norma"bgel, Marcia Jakab and Steve Miklosi. The oaths will be givn to Ms. Hancock and Ms. Fehrmann at a later date. Executive Session ,40 to AR. S. §38 -431 0A)(3), Council may ask for discussion or consultation for legal �ice -with the Town Attorney concerning any matter listed on this agenda , 1: Executive session pursuant to A.R.S. § 38- 431.03(A)(1) for discussion, consideration andpossil_ interviews of�andidates for appointment to the Town of Marana Planning and ZoningV* mmission ADJOURNMENT' =. Motion to adjourn moved by Council Member Post, second by Council Member McGorray. Motion carried unanimously. The meeting was adjourned at 7:21 p.m. CERTIFICATION I hereby certify that the foregoing are the true and correct minutes of the Marana Town Council meeting held on July 12, 2011. I further certify that a quorum was present. Jocelyn C. Bronson, Town Clerk Regular Council Meeting - July 19, 2011 - Page 89 of 190 3 July 12, 2011 Council Meeting Minutes MARANA vo""*Aftom 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM ...................................... . ... - .. . ........ . .............. . ........... . . ......... . .. ........................................... To: Mayor and Council Item L I From: Jocelyn Bronson , Town Clerk Strategic Plan Focus Area: Not Applicable Subject: Relating to Liquor Licenses; recommendation to the state liquor board regarding a New Series #4 (Wholesale) liquor license application submitted by Bryant S. West on behalf of Cordon Distributors located at 6260 N. Travel Center Drive, Ste K-3 Discussion: This application is for a New Series #4 (Wholesale) liquor license application submitted by Bryant S. West on behalf of Cordon Distributors located at 6260 N. Travel Center Drive, Ste K- 3. Pursuant to state law, the application was posted at the premises where the business is to be conducted. The posted notice provided that residents within a one-mile radius from the premises may file written arguments in favor of or opposed to the issuance of the license with the Town Clerk's Office within 20 days of the posting. As of July 12th, no written arguments were received by the Clerk's Office for or against the proposed liquor license. The Town's Building Safety, Planning and Legal Departments/Divisions have reviewed this application to determine whether the applicant is in compliance with zoning, building and other legal requirements for the business. The Marana Police Department conducted a local background check of the applicant. Based upon the information which was identified by the Marana Police Department an internal inconsistent response was identified in the application. The applicant requested and was granted an opportunity by the state liquor control board to amend his application which was done to the satisfaction of the Marana Police Department. No departments have any objections to the application. As a result of the amendment the application was reposted at the premises according to state requirements. The Town Council must enter an order recommending approval or disapproval of the application within 60 days after filing of the application. By state statute, "in all proceedings before the town council, the applicant bears the burden of showing that the public convenience requires and that the best interests of the community will be substantially served by the issuance of a license." If the Council's recommendation is for disapproval, the order must include an attachment stating the specific reasons for the recommendation of disapproval and including a summary of the Regular Council Meeting - July 19, 2011 - Page 90 of 190 testimony or other evidence supporting the recommendation. If the Council enters an order recommending approval of the application, then no hearing before the Arizona state liquor board will take place, unless the director of the DLLC, the liquor board or a resident within a one mile radius from the premises requests a hearing. If the Council enters an order recommending disapproval of the application or does not submit a recommendation to the DLLC within the 60 -day time period, or if the director, board or a resident within a one mile radius from the premises requests a hearing, then the state board will hold a hearing regarding the application. At the hearing, the state board will consider all evidence and testimony in favor of or opposed to the granting of the license. The decision of the board to either grant or deny an application will normally take place within 105 days after the application has been filed, unless the director of the DLLC deems it necessary to extend the time period. AT TACHMENTS: Name: Description: Type: E:1 Common types of liquor_ licenses_ (00018233).DOC Descriptions of common types of liquor licenses Backup Material ❑ Affidavit of Postina.pdf Affidavit of Posting Backup Material El Use_Form_LGB Recommendai ion.pdf Recommendation Backup Material D Cordon amending_docs.pdf Amending Documents Backup Material Staff Recommendation: Staff recommends that an order recommending approval be submitted to the DLLC for this liquor license application. Suggested Motion: OPTION 1: I move to adopt an order recommending approval of a New Series #4 (Wholesale) liquor license application submitted by Bryant S. West on behalf of Cordon Distributors located at 6260 N. Travel Center Drive, Ste K -3. OPTION 2: I move to adopt an order recommending denial of a New Series #4 (Wholesale) liquor license application submitted by Bryant S. West on behalf of Cordon Distributors located at 6260 N. Travel Center Drive, Ste K -3. Regular Council Meeting - July 19, 2011 - Page 91 of 190 Department of Liquor Licenses and Control Descriptions of Common Types of Liquor Licenses Series 04 Wholesaler This non- transferable liquor license allows a wholesaler to warehouse and distribute for sale, all types of spirituous liquor to licensed retailers within the permissions of that retail license_ A wholesaler may not have a financial interest in a retail spirituous liquor business. A wholesaler may: 1. Participate in a licensed "special event" by furnishing advertising, sponsorship and services and donating spirituous liquor to a non'- profit organization. 2. Stock, price and rotate product at 'a retail business (at the point of sale only). . Fumish advertising novelties (value of less than 5.00) directly to consumers (they may not pass through the retailer). 4. Offer sampling of new products or products unf iri fiat to the 'peIrSon,receiving the sample! Series 06 Bar This liquor license is transferable from person to person and /or location to location within the same county only and allows the holder both on- & off -sale retail privileges. This license allows a bar retailer to sell and serve spirituous liquors, primarily by individual portions, to be consumed on the premises and in the original container for consumption on or off the premises. A retailer with off -sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Payment must be made no later than the time of delivery. Off -sale ( "To Go ") package sales of spirituous liquor can be made on the bar premises as long as the area of off -sale operation does not utilize a separate entrance and exit from the ones provided for the bar. A hotel or motel with a Series 06 license may sell spirituous liquor in sealed containers in individual portions to its registered guests at any time by means of a minibar located in the guest rooms of registered guests. The registered guest must be at least twenty - one (21) years of age. Access to the minibar is by a key or magnetic card device and not furnished to a guest between the hours of 1:00 a.m. and 6:00 a.m. Monday through Saturday and 1:00 a.m. and 10:00 a.m. on Sundays. This is a quota license, which means there are no "new" Series 06 licenses available. It must be purchased privately and the price is based on availability in the county. Once a Series 06 has been purchased, the buyer must apply for a transfer to have the license put in his or her name, at the same or another location. Regular Council Meeting - July 19, 2011 - Page 92 of 190 (00018233.DOC /) Department of Liquor Licenses and Control Descriptions of Common Types of Liquor Licenses Series 07 Beer and Wine Bar This liquor license is transferable from person to person and/or location to location within the same county only and allows the holder both on- & off-sale retail privileges. This license allows a beer and wine bar retailer to sell and serve beer and wine, primarily by individual portions, to be consumed on the premises and in the original container for consumption on or off the premises. A retailer with off-sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Off-sale ("To Go") package sales can be made on the bar premises as long as the area of off-sale operation does not utilize a separate entrance and exit from the one provided for the bar. Payment must be made no later than the time of delivery. This is a quota license, which means there are no "new" Series 07 licenses available. It must be purchased privately and the price is based on availability in the county. Once a Series 07 has been purchased, the buyer must apply for a transfer to have the license put in his or her name, at the same or another location. Series 09 Liquor Store This liquor license is transferable from person to person and/or location to location within the same county only and allows the holder off-sale retail privileges. This license allows a spirituous liquor store retailer to sell all spirituous liquors, only in the original unbroken package, to be taken away from the premises of the retailer and consumed off the premises. A retailer with off- sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Payment must be made no later than the time of delivery. Series 10 Beer and Wine Store This non-transferable, off-sale retail privileges liquor license allows a retail store to sell beer and wine (no other spirituous liquors), only in the original unbroken package, to be taken away from the premises of the retailer and consumed off the premises. A retailer with off-sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Payment must be made no later than the time of delivery. Series 11 Hotel/Motel This non-transferable, on-sale retail privileges liquor license allows the holder of a hotel/motel license to sell and serve spirituous liquor solely for consumption on the premises of a hotel or motel that has a restaurant where food is served on the premises. The restaurant on the licensed premises must derive at least forty percent (40%) of its gross revenue from the sale of Regular Council Meeting - July 19, 2011 - Page 93 of 190 {00018233.DOC /) Department of Liquor Licenses and Control Descriptions of Common Types of Liquor Licenses food. The holder of this license may sell spirituous liquor in sealed containers in individual portions to its registered guests at any time by means of a minibar located in the guest rooms of registered guests. The registered guest must be at least twenty-one (21) years of age. Access to the minibar is by a key or magnetic card device and not furnished to a guest between the hours of 1:00 a.m. and 6:00 a.m. Monday through Saturday and 1:00 a.m. and 10:00 a.m. on Sundays. Series 12 Restaurant This non-transferable, on-sale retail privileges liquor license allows the holder of a restaurant license to sell and serve spirituous liquor solely for consumption on the premises of an establishment which derives at least forty percent (40%) of its gross revenue from the sale of food. Failure to meet the 40% food requirement shall result in revocation of the license. Regular Council Meeting - July 19, 2011 - Page 94 of 190 (00018233.DOC /) ARIZONA DEPARTMENT OF LIQUOR,.,LICENSES AND CONTROL 800 W Washington tj Floor Phoenix AZ 85007 >24 w_ww. aZ4qu,or 6 AFFIDAVIT 0 POSTING Date of Posting: '.N of Pasting Removal, West Bryant tt Applicant Name-, fast First Middle , 6260 N. Travel Center Chive, Ste -3 M rang 85741; Business Address: 'Street City zip 0410306 License #: I hereby certify that pursuant to A.R.S. § 4-201, I posted notice its e conspicuous place on the `premises proposed to be licensed' ythe above applicant and said notice was pasted for at least twenty (201 plays: Print Name of City/County O idai Title Telephone# sigmture Date Sigried Return this affidavit With your recommendation (i.e., Minutes f Meeting, Verbatim, etc:) or any other relates documents. If you have any questions please call (602) 542 -:5141 and ask for the Licensing Division. Individuals requiring special aiwornmoclabdrrs plea. call (602p 5424027 kMt9.W Regular Council Meeting - July 19, 2011 - Page 95 of 190 Arizona Department of Liquor Licenses and Control 800 West Washington 5th Floor Phoenix, Arizona 85807 www.azli'qutir gov 6102- 542 -5141 LOCAL GOVERNING BODY RECOMMENDATIO MARANA 04-10302 ClT' .flW N F STATE. APPLICATION # ITY4 PIMA COUNT GF ARIZONA. 'GITy1TOWN/COUN ` : ORDER ti Regula Marana Town Council At a meeting of the of the Cit ' ounty (Regular of Special) (Governin Rudy) Marana 19th ,1uly 01 1 Of held on the day of the (Day) ` Womb)` (Yew) Bryant Scott West application of for a license to sell spirituous liquors at the premises described in Application # 04103026 License Glass Sefles was considered as provided by Title 4, AA S. as amended. IT IS THEREFORE ORDERED that the,APPUCATION of Bryant _Scott West is hereby recommended for (approval /c isapproval) a license to sell spirituous liquors of the class, a nd in the manner designated in the Application. IT IS FURTHER' ORDERED that a Certified Copy of this Order be immediately transtnitted to the Department of Liquor Licenses and Control, Licensing Division, Phoenix, Arizona. - - lT O COUNTY CL RK DATED AT This day of (Day) (Month) (year) * Nsabled individuals requiring special accornmadations please-call the Department air aoF can Regular Council Meeting - July 19, 2011 - Page 96 of 190 If you checked the Manager box on the front of this form skip to 916 _ 1 d. Asa ContrAng Person Or Agent will yvu be MIsically preserd and operWrig the RaDnmd premises? E3YES QNO If you atnawered YES, how marry hrsfddy? , and wagwcrt4a tminw_ If NQ, skip to #15. 146. Have you attended a OLLC- approved Liquor Law Training Course within the pest 5 years? tMu%t prcmde prxo DYES I3NO If the answer to # 14u is "NO ", Course must be comptefed before issuance of a new license or approval on an exisoriq troortrsa_ 15. Have you been ftain cited. n e indicted oS SLrnapgjr d into court for violation of &NY law or YES i ] NO ordinance, regardless of file disposition. even if disrnissed or expunged, within Ste past ten (10) years t ,t (Inctude only traffics violations that were alcohol tanWor drug related)? jV`a 16. Are there gba administrative law citations, compliance actions or consents, criminal arrest, indictments Q YF-S L J NO or summonses 28NQLhLq agatnst you or&Ny entry in which you are now involved? 17. Have you or any entity in which you have held ownership. been An o1fieer, member, director or numoger D YES Ij NO EVER had a business, professional orlioUMAgUfiqa1Ip0 o license rci a ndc3d gr Mad i» this or any other State? 18. Has anyone EVER }ed s_S o,C tsiner! s� iy tr nt aga�nSLM the subject of which involved fratd� OYES i� NO .. 19, Are you NQW or have you Z4ZR held QWrsersho teen a matrollinZoe =, been an afh-Cas, Men* DYES a ND c rector or m anager on & si KQu2 license in this or any other state? ff any answer to Questions 15 through 19 is'KW YQII M_QS attach a � g Cement CzL including dates, age:icies Involved, and dispositions. SUSSTANTMV CHANGES TO THIS APPLICATION WILL NOT SE ACOEPTED �.v hereby declare that I am the APPLIQANT /REPRESE,NTATIV (pro Jul ngri of AWicanq filing this questiorin afire. t have read this questformaire and all statements Sara true, correct and complete,. " r" X,......... ............. .�....._.............._....�.�. _... .. Stare of_ __County or (Sianairxe of Ap=lift Ml n*, loregointl Instnnswnt wnb &okw7w1ua19(A.d tr:fore a W:; — day of_"_ Moral) Q My cWMI -st on expires on_ Day Mmlh Ycxr � (Slgrnrltxr, of NpTARY PUBLIC) CGMPLE1 THIS SECTION ONLY IL= YOU ARE A CONTROLLING PERSON OR AGENT APPROVING. A MANAGER'S APPUCATfON 21. The applicant hereby authorises the person named on this questiorm sire to act .aa manager for the named liquor license. The manager named must be at least 21 years of age, 61,9te of County of 13r lueegoing insuurncnt was as*nc�v�ACtlgeC txtlni E` me rhia X day of Signature of Certtroiling person or AW. t (rjralk one) iutath � Y _ Pfint Nan ealtlre of NOTAk' PUM - 10) My come iiswri expires on: _ Day Mt+Mb � Yeau AM ENDMENT Regular Council Meeting - July 19, 2011 - Page 97 of 190 Am.endment to uestzonn il Item �, 5 My narcrc is Bryant West and i am seeking pemriSSion for tin Amendment to M. y quesiionnalrc as pert ormy %ericc 4 ligttpr litor>SC. Junniller Benson is my rcpresenttativo MvJ my perlding application number is Qcl1 Qa(12G, As an oversight tin my part. I unintenticnlally had stated N to item 15. 1 would like to amend my sinswer to sta YH;S Rind enclose the fallowing detail% to the caxe at horid. On August 26 a 2002, 1 war,• pulled over by a Pirna County Sheriff. I had rewi ved a sj=ding ticket and way charged with Passc.Ssion orrnarijtrfma paraphernalia.. I pled suilty and paid a line, On August 29' 20002. 1 was pulled over by a Pinta County Sheritffor an Mop] U -turn. When the police ofTic:er can1C to cite tnc he n0 tieCd that my cax Stnollod 01` marijuana. The officer found a small rtlatnunt ot'=riitrana, marijuana paraphernalia ,,md I was issued s ticket asking for me to appear before a ju dge, '1'hiti watt a misdemcttnor Cla3rgc which was dismig,cud through the divcrsitrn program. 1 ptrid a l�irtc anct succcs.Ally completed ;a drug awareness clgas. In my response to itetxt 15.1 didn't have access to my record and thought the incidents that {recurred in August of 2002 had occurred there than 10 year~ ago. 'Phis waft obviously my mistAm and hadn't rcalir_cd it oummed Mthm the last 10 years ttnfii the Mamma P(Riee Dept. heal Brought it to my attuntion. I AP as it wits not my intention to be misleMing. �. 1 have: spoken with the Mar,atta town cetmcil and they have Informed mc: that everytlfing r.icc in our application is good and that they are looking fbrward to our busiryms. "i' LY have :advised me to request an t+tnendment to which t im sinec;rely asking to for your help. Please conlad. me at 520-300-075 or by email tit t �; J� Bryaniscotti est@g naH.com Sincercly, Bryant West Cordon Distrib►nory I..I..C. IVIE T Regular Council Meeting - July 19, 2011 - Page 98 of 190 i I i MARAN, \S' 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM .................... 1.1111.111,111.11,11,'ll""I-1111-11,11,11lI .................. - .......... ................. . ........ To: Mayor and Council Item B 1 From: Jocelyn Bronson , Town Clerk Strategic Plan Focus Area: Not Applicable Subject: Re-solution No. 2011-76: - Relating to Boards, Commissions and Committees; approving the appointment of to the Marana Public Safety Personnel Retirement System local board Discussion: Under state law, the Town of Marana is required to maintain a local board to administer the Public Safety Personnel Retirement System (PSPRS) for its PSPRS-eligible employees. The local board must include the mayor or his designee, two PSPRS-eligible employees elected by their peers and two citizens appointed by the mayor with the approval of the Town Council. Mayor Ed Honea is requesting Council approval of the appointment of — to the local board. The appointment term would be for four years and would expire on June 30, 2015. ATTACHMENTS: Name: Description: Type: D Reso— appointing -jo�-R$P,R,S.DOC Resolution Resolution Staff Recommendation: Suggested Motion: I move to adopt Resolution No. 2011-76; approving the appointment of to the Marana Public Safety Personnel Retirement System local board for a term ending June 30, 2015. Regular Council Meeting - July 19, 2011 - Page 99 of 190 MARANA RESOLUTION NO. 2011-76 RELATING TO BOARDS, COMMISSIONS AND COMMITTEES; APPROVING THE APPOINTMENT OF TO THE MARANA PUBLIC SAFETY PERSONNEL RETIREMENT SYSTEM LOCAL BOARD WHEREAS the Town of Marana has created the Marana Public Safety Personnel Retirement System ( PSPRS) local board pursuant to A.R.S. § 38 -847 to administer the system for the Town and to make the provisions of the system effective for the Town; and WHEREAS A.R.S. § 38 -847 provides that two members of the local PSPRS board shall be citizens appointed by the mayor with the approval of the Town Council; and WHEREAS Mayor Ed Honea desires to appoint to the Marana Public Safety Personnel Retirement System local board for a four -year term. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that is appointed to the Marana Public Safety Personnel Retirement System local board for a four -year term, ending June 30, 2015. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19 day of July, 2011. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 100 of 190 RN =/ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item B 2 From: Suzanne Machain , Human Resources Director Strategic Plan Focus Area: Not Applicable Subject: Res olution No. 201 1_77:_ Relating to Boards, Commissions and Committees; reappointing Annie Hoffman and Jack Noble to the Town of Marana Personnel Action Review Board Discussion: The Town provides formal personnel action review to ensure that employees receive fair and equitable treatment and to provide an orderly procedure for resolving disciplinary actions. As part of the formal review process, employees may appeal certain disciplinary actions to the Personnel Action Review Board (PARS). The PARB is composed of five members, all of whom must be residents of Marana. PARB members are appointed by the Town council. All members serve in a voluntary capacity and receive no benefits from the Town. On August 18, 2009, five PARB members were appointed under amended personnel policies and procedures. Initially, three members were appointed to 4 -year terms and two members were appointed to 2 -year terms to allow for staggered terms. The personnel policies provide that after the expiration of the initial 2 -year terms, the terms for all PARS members shall be for 4 years. The initial 2 -year term appointments for board members Annie Hoffman and Jack Noble will expire on August 17, 2011 and new appointments are required. Both Ms. Hoffman and Mr. Noble have expressed their interest in reappointment. ATTACH Name: Description: Type: E Resolution—reappointments—to—PARB (00026962).DOC Resolution Backup Material Staff Recommendation: Staff recommends reappointment of board members Annie Hoffman and Jack Noble. Suggested Motion: I move to adopt Resolution No. 2011 -77; reappointing Annie Hoffman and Jack Noble to the Town of Marana Personnel Action Review Board for four -year terms, beginning August 18, 2011 through August 17, 2015. Regular Council Meeting - July 19, 2011 - Page 101 of 190 MARANA RESOLUTION NO. 2011-77 RELATING TO BOARDS, COMMISSIONS AND COMMITTEES; REAPPOINTING ANNIE HOFFMAN AND JACK NOBLE TO THE TOWN OF MARANA PERSONNEL ACTION REVIEW BOARD WHEREAS on August 18, 2009, the Town Council adopted Resolution No. 2009 -133 amending Chapter 5 of the Personnel Policies and Procedures relating to the composition and selection of the Personnel Action Review Board (PARB); and WHEREAS Section 5 -7 -4 of the amended Personnel Policies and Procedures provides that the first members appointed to the PARB following the adoption of Resolution No. 2009 -133 would serve staggered terms, with three PARB members serving four -year terms and two PARB members serving two -year terms, and that thereafter, the term of office for each PARB member shall be for four years; and WHEREAS on August 18, 2009, via Resolution No. 2009 -143, the Town Council appointed Annie Hoffinan and Jack Noble to two -year terms on the PARB, which terms will expire on August 17, 2011; and WHEREAS the Mayor and Council find that the best interests of the Town of Marana and its citizens are served by reappointing Annie Hoffman and Jack Noble to the PARB. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that Annie Hoffman and Jack Noble are reappointed as members of the Town of Marana Personnel Action Review Board for four -year terms beginning on August 18, 2011. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19 day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 102 of 190 {00026961DOC /} RAN 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item A 1 From: Ed Honea , Mayor Strategic Plan Focus Area: Commerce Strategic Plan Focus Area - Additional Information: The Town's strategic plan identifies commerce, including the recruitment of new business and industry, as one of the key focus points in striving to achieve the Town's long -term vision. Supporting the economic development opportunities associated with the proposed Rosemont Mine is consistent with the Town's short term objective of furthering commerce and furthers the Town's overall vision of becoming the centerpiece of the Sonoran desert experience. Subject: Res No. 2011 -78: Relating to Intergovernmental Relations; supporting the job creation and economic development opportunities associated with the proposed Rosemont Mine Discussion: The Rosemont Mine is a mining operation, focused primarily on the extraction of copper, proposed for the Santa Rita Mountains in the Coronado National Forest south of Tucson. For the past several years, the mine's proposed operators, Rosemont Copper, have been engaged in federal and local permitting processes to obtain necessary authority to begin the mining operation. An Arizona State University study commissioned by Rosemont Copper in 2009 anticipates that operation of the mine will lead to approximately 406 direct jobs, 1,700 indirect jobs throughout Southern Arizona, and $19 million in local tax revenue. Several Marana -based companies, which combined support an estimated 300 jobs in Marana, are also likely to benefit from the mine's operation through provision of goods and services to Rosemont Copper. Earlier this month, the U.S. Forest Service proposed approval of the Rosemont Mine in its draft environmental impact statement, indicating that the mine complies with all laws and regulations and its plan of operation seeks to mitigate any environmental impacts. The proposed resolution would voice the Town of Marana's support for the economic development and job creation benefits associated with the proposed Rosemont Mine, while also encouraging Rosemont Copper to continue working with other neighboring jurisdictions and community partners to address concerns and mitigate any remaining adverse impacts to the area. Regular Council Meeting - July 19, 2011 - Page 103 of 190 ATTACHMENTS: Name: Description: Type: El Reso Rosemont Mine in_support.doc Resolution Resolution Staff Recommendation: Suggested Motion: I move to adopt Resolution No. 2011 -78; supporting the job creation and economic development opportunities associated with the proposed Rosemont Mine. Regular Council Meeting - July 19, 2011 - Page 104 of 190 MARANA RESOLUTION NO. 2011-78 RELATING TO INTERGOVERNMENTAL RELATIONS; SUPPORTING THE JOB CREATION AND ECONOMIC DEVELOPMENT OPPORTUNITIES ASSOCIATED WITH THE PROPOSED ROSEMONT MINE WHEREAS several Marana -based businesses, supporting approximately 300 jobs, are partners with Rosemont Copper in connection with its development of the Rosemont Mine in the Santa Rita Mountains; and WHEREAS support of existing Marana businesses through regional supply chain development is a target industry in the Marana Economic Roadmap; and WHEREAS Rosemont Copper has publicly stated its desire to form partnerships with Southern Arizona stakeholders and jurisdictions and seek development solutions that are sensitive to the needs of both the economy and the environment; and WHEREAS the Mayor and Council find that the adoption of this resolution is in the best interests of the town and its citizens and businesses. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Town of Marana supports the job creation and economic development opportunities associated with the proposed Rosemont Mine. SECTION 2. The Town of Marana encourages Rosemont Copper to continue working with regional stakeholders and jurisdictions to address concerns, respond to questions and find solutions that will benefit the entire Southern Arizona community. SECTION 3. Town of Marana Resolution No. 2010 -92, adopted on September 21, 2010, is hereby repealed and superseded by this resolution. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19 day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting - July 19, 2011 - Page 105 of 190 RN /I\ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item A 2 From: Kevin Kish , General Manager Development Services Strategic Plan Focus Area: Not Applicable Subject: Ordinance No. 2011.18: Relating to Development; approving and authorizing the Mayor to execute the Development Agreement for the Saguaro Bloom Development Project Discussion: Summary of A Marana 670 Holdings, LLC, represented by Fennemore Craig, PC, is requesting approval of the Development Agreement for the Saguaro Bloom (formerly Saguaro Springs) Development Project. The owner has indicated that a preliminary decision has been made to change the name of the development project from Saguaro Springs to Saguaro Bloom. The proposed Development Agreement between the Town of Marana and Marana 670 Holdings, LLC (the "owner ") is intended to promote and facilitate the orderly and planned development of the Saguaro Bloom development. The owner is a property investment entity. As development occurs, the owner plans to transfer portions of the property to development entities, including a new Grayhawk development entity whose name will be inserted as a party to this development agreement. The owner, the Grayhawk development entity, and all subsequent owners of the property shall be bound by all terms and conditions of the Development Agreement. The property subject to this development agreement includes all of the Saguaro Springs Block Plat titled `Saguaro Springs Blocks 1 thru 10 & A thru D and Lots 1 thru 9 and A & B, recorded in the Pima County Recorder's Office in Book 58 of Maps and Plats, Page 23 except the following, which are collectively referred to in the Development Agreement as the "Excluded Property ": 1. Block 10 as depicted in the Saguaro Springs Block Plat, and 2. That part of Block 8 as depicted on the Saguaro Springs Block Plat specifically described as Lots 17 through 45, 87 through 95, and 99 through 130 of Saguaro Springs Block 8A according to the subdivision recorded in the Pima County Recorder's Office at Book 62 of Maps and Plats, Page 7. The property is the same as described in the prior development agreement with the exception of the `Excluded Property' and the lands that have been dedicated to the public since the execution of and in furtherance of the prior development agreement. This includes an approximately 29.26 acre park site dedicated to the Town of Marana as well as land dedicated to the Marana Unified Regular Council Meeting - July 19, 2011 - Page 106 of 190 School District for the construction of an elementary school. The excluded properties are not currently held by Marana 670 Holding, L.L.C. and therefore are not part of these changes. The current Amended and Restated Development Agreement, as amended will continue to be in affect for these areas. The intent of the Town and the owner is that the proposed development agreement restates in its entirety the prior development agreement and proposes to replace and supersede the prior agreement in its entirety with respect to the property. The development agreement establishes among other things the types of land uses, locations, densities and intensities of such land uses, and community character of the property to provide for, among other things, the development of a variety of housing and recreation /open space opportunities, as such development may be modified by subsequent land use plans. The property will be developed in accordance with the Land Development Code, as well as the previously approved Ordinances as follow: 1. Town of Marana Ordinance 97.04, (Rezoning), adopted February 18, 1997. 2. Town of Marana Ordinance 99.14, (Rezoning), adopted May 18, 1999. 3. Town of Marana Ordinance 2005.14, (Saguaro Springs Specific Plan), adopted November 15, 2005. O verview of Key P rovisions 1. The Development Agreement shall provide for conditions, terms, restrictions, and requirements for the construction and installation of public infrastructure, as more particularly described in the Infrastructure Plan as defined in Section 2.1 of the Development Agreement. 2. The development of the property pursuant to the Development Agreement is consistent with the portions of the Town's General Plan applicable to the property and will result in planning and economic benefits to the Town and it residents. 3. The property is subject to a community facilities district (the Saguaro Springs CFD) formed under the authority f Arizona Revised Statutes Title 48, Article 6 (A.R.S. 48 -701 through 48- 725). (Section 4.9). 4. The Town will cooperate with the owner and developer in good faith with regard to any rezoning requests or other development approvals as long as the total residential density within the property does not exceed 2,509 units. 5. The developer shall fulfill all conditions to development as defined in the previously approved Rezoning Ordinances. The property includes areas that are currently zoned R -6 Residential, R -36 Residential, Zone C - Large Lot Zone, and Zone F Specific Plan. The owner shall be permitted to develop the property consistent with the less restrictive of the development code zoning regulations in effect as of the date of this agreement or the zoning regulations in effect at the time development occurs. (Section 1.3). 6. The approved Infrastructure Plan for the property consists of the infrastructure improvements described in Article 2 of the Development Agreement. 7. The owner shall construct approximately 42 acres of "Public Recreational Amenities" within the area encompassed by the Saguaro Springs Block Plat consisting of a park and trails as defined in Sections 2.6, 2.7, and 2.8 of the Development Agreement. 8. The owner, developer, and the Town will confer in good faith to determine a cost - effective and quality solution for completion of the Arizona State Land Department (ASLD) Drainage Channel Improvements. The owner will coordinate with the ASLD to complete the required improvements. (Section 2.10 and 2.11). 9. The owner, developer, and the Town will confer in good faith to amend the existing Water Service Agreement or enter into a new agreement that will supersede the existing agreement to Regular Council Meeting - July 19, 2011 - Page 107 of 190 reflect the current status and planning of the project. (Section 4.2). 10. The wastewater infrastructure necessary for the project to be served by Pima County has already been installed and substantially completed. If the Town becomes the wastewater utility service provider for the project, the Town will not require the owner to pay for or construct or install any wastewater infrastructure improvements that are needed to transition wastewater utility service for the project from Pima County to the Town. (Section 4.3). ATTACHMENTS: Name: Description: Type: ❑ Ordinance—Saguaro—Bloom—DA (071911).DOC Ordinance Ordinance ❑ Saguaro Bloom DA_(00025853- 6).DOC Exhibit A to Ordinance Exhibit ❑ Saguaro Springs_DA_ Exhibit _List.pdf_Final.pdf_Final.pdf Exhibits to DA Exhibit 1A Backup PCM- 11.021_Location_Map.pdf Location Map Material ❑ PC—Resolution 2011- O1.pdf Executed Planning Commission Resolution Backup 2011 -01 Material ❑ WS_BinaryComparison Saguaro Bloom DA_(00025853- Comparison of current DA to version Backup 5)- 00025853.pdf presented to Commission Material Staff Recommendation: Staff recommends adoption of Ordinance No. 2011.18 adopting the Development Agreement for the Saguaro Bloom Development Project, with the insertion of the Grayhawk development entity name and corrected Exhibits A (property depiction) and B (property description) as provided prior to the Council meeting. (The property depiction and property description contained in the agenda materials do not remove the "Excluded Property" -- portions of the original Saguaro Springs development project that are not yet owned by Marana 670 Holdings, LLC.) Commission Recommendation - if applicable: A public hearing was held by the Town of Marana Planning Commission on June 29, 2011. The Commission passed and adopted Planning Commission Resolution 2011 -01 recommending that the Town Council approve the Development Agreement for the Saguaro Bloom Development Project. A copy of the Planning Commission Resolution is attached as part of the backup materials for this item. The language of the Resolution is consistent with the eventual findings, report, recommendation, and vote of the Planning Commission. The version of the agreement presented for Council approval is slightly modified from the version presented to the Commission. Town Attorney Frank Cassidy has prepared and attached to the backup materials a comparison draft of the changes negotiated since the version presented to the Commission. The most substantive changes involve the timing of the Twin Peaks signal installation (it now must be installed when the developer's other Twin Peaks Road improvements are constructed) and the successors and assigns provision (making it easier for the developer to transfer portions of the property, but clarifying that permits will be held throughout the project if required improvements are not in place). Frank Cassidy will be available to discuss these and any other provisions of the development agreement that are the subject of questions from the Council. Suggested Motion: OPTION 1: I move to adopt Ordinance 2011.18 as presented b staff, with the insertion of the Grayhawk development entity name and corrected Exhibits A ( depiction) and B (property description) as provided prior to the Council meeting. OPTION 2: I move to adopt Ordinance 2011.18 as presented by staff, with the insertion of the Regular Council Meeting - July 19, 2011 - Page 108 of 190 Grayhawk development entity name and corrected Exhibits A (property depiction) and B (property description) as provided prior to the Council meeting, and subject to the following modifications (add as necessary). Regular Council Meeting - July 19, 2011 - Page 109 of 190 i MARANA ORDINANCE NO. 2011.18 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE DEVELOPMENT AGREEMENT FOR THE SAGUARO BLOOM DEVELOPMENT PROJECT WHEREAS the Marana Town Council finds that the Development Agreement for the Saguaro Bloom Development Project is consistent with the Marana General Plan, applicable specific plans, and relevant Town policies; and WHEREAS the Marana Town Council finds that the Development Agreement for the Saguaro Bloom Development Project is in the best interest of the Town and its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, AS FOLLOWS: SECTION 1. The Development Agreement for the Saguaro Bloom Development Project is hereby approved in the form attached to and incorporated by this reference in this Ordinance as Exhibit A. SECTION 2. The Mayor is hereby authorized and directed to execute The Development Agreement for the Saguaro Bloom Development Project for and on behalf of the Town of Marana. SECTION 3. The various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this Ordinance. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19 day of July, 2011. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting -July 19, 2011 -Page 110 of 190 WHEN RECORDED, RETURN TO: Town Clerk TOWN OF MARANA 11555 North Civic Center Drive Building A3 Marana, Arizona 85653 DEVELOPMENT AGREEMENT FOR THE SAGUARO BLOOM DEVELOPMENT PROJECT Town of Marana, Arizona Marana 670 Holdings, LLC Regulg0Qgm4.MWing }- July 19, 2011 - Page 111 of 190 DEVELOPMENT AGREEMENT FOR THE SAGUARO BLOOM DEVELOPMENT PROJECT THIS DEVELOPMENT AGREEMENT (this "Development Agreement ") is made by and be- tween the TOWN OF MARANA, an Arizona municipal corporation (the "Town "), MARANA 670 HOLDINGS, LLC, an Arizona limited liability company (the "Owner "), and ( "Grayhawk "). The Town, the Owner, and Grayhawk are sometimes collectively referred to as the "Parties," any one of which is sometimes individually referred to as a "Party." RECITALS A. The Owner is the current owner of the real property within the corporate limits of the Town, as depicted on the map attached hereto as Exhibit A and legally described on Exhibit B (the "Property "), now known by the name "Saguaro Bloom" and formerly known as "Saguaro Springs" (the "Development" or "Project "). B. The Owner is holding the Property for investment purposes and does not have any present intent to develop the Property for its own account, but the Owner and all subsequent owners of the Property shall be bound by all terms and conditions of this Development Agreement applica- ble to the "Owner." C. The Owner has entered into an option agreement with Grayhawk granting Grayhawk an exclusive option to purchase, for the purpose of development and /or resale to builders, all or a portion of the Property, which option agreement is evidenced by that certain Memorandum of Option Agreement recorded in the Pima County Recorder's office at Sequence Number . All entities that develop the Property, including the Owner and Grayhawk if and to the extent the Owner or Grayhawk decides to develop the Property, are referred to in this Agreement as the "Developer." D. The Project is the subject of a block subdivision plat titled "Saguaro Springs Blocks 1 thru 10 & A thru D and Lots 1 thru 9 & A and B," recorded in the Pima County Recorder's of- fice at Book 58 of Maps and Plats Page 23, and referred to in this Development Agreement as the "Saguaro Springs Block Plat." E. The Property includes all of the Saguaro Springs Block Plat except the following, which are collectively referred to in this Development Agreement as the "Excluded Property ": (i) Block 10 as depicted on the Saguaro Springs Block Plat, and (ii) That part of Block 8 as depicted on the Saguaro Springs Block Plat specifically de- scribed as Lots 17 through 45, 87 through 95, and 99 through 130 of Saguaro Springs Block 8A according to the subdivision recorded in the Pima County Recorder's office at Book 62 of Maps and Plats, Page 7. F. The Town and Best Associates I1, LLC previously entered into that certain "Development Agreement" recorded in the Pima County Recorder's office on May 18, 1998 in Docket 10798 at Page 663 (the "Original Development Agreement ") regarding the Property and the Project. The Original Development Agreement was amended by a "First Amendment to Development Agreement" recorded in the Pima County Recorder's office on July 23, 1999 in Docket 11095 at Page 1615 (the "First Amendment to the Original Development Agreement "). The Original De- velopment Agreement, as amended by the First Amendment to the Original Development Agreement, was replaced in its entirety by that certain "Amended and Restated Development {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 112 of 190 - I - Agreement" recorded in the Pima County Recorder's office on April 12, 2004 in Docket 12278 at Page 3092, which was amended pursuant to that certain "First Amendment to Amended and Restated Development Agreement" recorded in the Pima County Recorder's office on December 12, 2005 in Docket 12698 at Page 3669 (collectively the "Prior Development Agreement "). G. The Property is the same as described in Exhibit A -1 to the Prior Development Agreement with the exception of the Excluded Property and the lands that have been dedicated to the public since the execution of and in furtherance of the Prior Development Agreement. H. The Parties desire to restate in its entirety the Prior Development Agreement and intend that this Development Agreement shall replace and supersede the Prior Development Agreement in its entirety with respect to the Property. I. The Parties desire to enter into this Development Agreement to establish, among other things, the types of land uses, locations, densities and intensities of such land uses, and commu- nity character of the Property, and to provide for, among other things, the development of a va- riety of housing and recreation /open space opportunities, as such development may be modified by subsequent land use plans. J. The Parties desire that the Property be developed in accordance with the following (the "Development Criteria "): (i) The Marana Land Development Code (the "MDC ") (ii) The zoning designations, stipulations, conditions and restrictions for the Property as detailed in the following (collectively the "Zoning Ordinances "): (a) Town Ordinance No. 97.04, passed and adopted February 18, 1997 (b) Town Ordinance No. 99.14, passed and adopted May 18, 1999 and recorded in the Pima County Recorder's office on June 11, 1999 in Docket 11066 at Page 501 (c) Town Ordinance No. 2005.14, passed and adopted November 15, 2005 and rec- orded in the Pima County Recorder's office on November 18, 2005 in Docket 12683 at Page 4068 K. The Parties acknowledge that this Development Agreement is intended to be consistent with the Development Criteria, and operates for the benefit of the Town, the Owner, the Devel- oper, and the general public. L. The Parties acknowledge and agree that this Development Agreement is a "development agreement" within the meaning of, and entered into pursuant to, the terms of A.R.S. § 9- 500.05, in order to facilitate the development of the Property by providing for, among other things, con- ditions, terms, restrictions, and requirements for the construction and installation of public infra- structure, as more particularly described in the Infrastructure Plan (as defined in Section 2.1 be- low); the phasing over time of construction or development on the Property; and other matters related to the development of the Property. M. The Parties acknowledge that the development of the Property pursuant to this Develop- ment Agreement is consistent with the portions of the Town's General Plan applicable to the Property and will result in planning and economic benefits to the Town and its residents, by, among other things, (i) requiring development of the Property consistent with the Development Criteria, (ii) increasing revenues to the Town based on improvements to be constructed within {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112 58 PM Regular Council Meeting - July 19, 2011 - Page 113 of 190 -2- the Property, and (iii) creating jobs through work to be performed in development of the Proper- ty. N. The Town acknowledges that the Owner and the Developer, in connection with the devel- opment of the Property, are relying upon the rights conferred upon the Owner and the Developer pursuant to this Development Agreement and the Prior Development Agreement, including without limitation the vested rights created by this Development Agreement. O. The Property is subject to a community facilities district (the "Saguaro Springs CFD ") formed under the authority of Arizona Revised Statutes Title 48 Article 6 (A.R.S. §§ 48 -701 through 48 -725) pursuant to: (i) The "Notice of Formation of Saguaro Springs Community Facilities District" recorded in the Pima County Recorder's office on November 28, 2007 in Docket 13190 at Page 1244; (ii) Town Resolution No. 2007 -152 "Ordering and Declaring Formation of Saguaro Springs Community Facilities District; Approving and Authorizing the Execution and Deli- very of a District Development, Financing Participation and Intergovernmental Agreement (Saguaro Springs Community Facilities District)" recorded in the Pima County Recorder's office on November 28, 2007 in Docket 13190 at Page 1248; and (iii) The "General Plan for the Proposed Saguaro Springs Community Facilities District" recorded in the Pima County Recorder's office on November 28, 2007 in Docket 13190 at Page 1277. P. The Owner, the Developer, the Town, and the Saguaro Springs CFD anticipate entering into a future "District Development, Financing Participation and Intergovernmental Agreement" governing the Saguaro Springs CFD's financing and acquisition of certain public infrastructure in or benefiting the Project. This future agreement is referred to in this Development Agreement as the "CFD Development Agreement." Q. The Owner's predecessor -in- interest has dedicated to the Town an approximately 29.26 acre park site (the "Park Site ") within the Project, consisting of Saguaro Springs Block Plat Block A (Retention/Detention Basin), encompassing approximately 22.59 acres (the "Basin "), and approximately 6.67 acres of the adjoining Saguaro Springs Block Plat Block 5. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Development Agreement, the Parties hereby agree as follows: Article 1. Development of the Property I.I. Development in Accordance with the Development Criteria The Property shall be de- veloped in accordance with the Zoning Ordinances, which (in conjunction with the MDC) set forth the basic land uses, densities, and intensities of such land uses as presently authorized for the Property and the development regulations related to it. The Developer may (i) implement and proceed with development of the Property in a manner consistent with the Zoning Ordinances, and (ii) proceed through the legally required development process and request the customary ap- provals necessary to permit the Developer to implement the Zoning Ordinances. Upon com- pliance by the Developer with the development review and approval process as set forth in the MDC and other Town ordinances, rules, regulations, and state and federal laws, the Town agrees to approve or issue such permits, plans, specifications, and /or plats of or for the Property as may 100025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 114 of 190 -3- be requested by the Developer and which are consistent with the Zoning Ordinances and the MDC. The Development Criteria constitute a protected development right plan (as defined in A.R.S. § 9 -1201, paragraph 4). 1.2. Development Approvals The Town will cooperate with the Owner and the Developer in good faith with regard to any rezoning requests or other development approvals, so long as the total residential density within the Property does not exceed 2,509 units. 1.3. Zoning Conditions As a condition to the Developer's ability to develop the Project in accordance with the Development Criteria, the Developer shall fulfill all conditions to develop- ment in the Zoning Ordinances. The Property includes areas currently zoned R -6 Residential, R -36 Residential, Zone C Large Lot Zone, and Zone F Specific Plan (Saguaro Springs Specific Plan) under the MDC. The MDC zoning regulations applicable to these zones in effect as of the date of this Development Agreement are attached to and incorporated by this reference in this Development Agreement as Exhibit C (Current MDC R -6 Residential zoning regulations), Exhi- bit D (Current MDC R -36 Residential zoning regulations) Exhibit E (Current Zone C Large Lot Zone zoning regulations), and Exhibit F (Current Zone F Specific Plan (Saguaro Springs Specific Plan) zoning regulations). The Developer shall be permitted to develop the Property consistent with the less restrictive of the MDC zoning regulations for these zones in effect as of the date of this Development Agreement or the zoning regulations for these zones in effect at the time de- velopment occurs. 1.4. Amendments to Plans and Development Agreement The Parties agree to cooperate and in good faith pursue any amendments to this Development Agreement that are reasonably neces- sary to accomplish the intent and purposes of the Zoning Ordinances and to facilitate the devel- opment of the Property in light of any changes in development requirements. 1.5. Residential Design The Project shall adhere to the standards set forth in sec- tions 8.06.07, 8.06.08, 8.06.09, and 8.06.10 of the Town's residential design ordinance, Ordin- ance No. 2005.18 adopted September 19, 2005, and recorded in the Pima County Recorder's of- fice on September 23, 2005 at Docket 12645, Page 413, with the following exceptions: 1.5.1. A total of 60% of the detached homes in the Project may have two stories. 1.5.2. All of the homes in the Project (single -story and two- story) shall consist of four - sided design as approved by the Planning Director. 1.6. Outside Consultants If the Town is unable to provide sufficient personnel (either in- house staff or outside consultants to the Town) to review plans and other materials ( "Submitted Materials ") within the time desired by the Developer, the Developer may agree in writing to pay the direct costs incurred by the Town to retain such consultants or other experts as the Town may reasonably deem necessary to review the Submitted Materials on behalf of the Town. Such con- sultants or experts shall be mutually selected by the Town and the Developer from a list of Town - approved on -call consultants. The Developer acknowledges that the consultant's or ex- pert's recommendations will be subject to review and approval by Town Staff and that the Town shall not be bound by any of the consultant's or expert's recommendations unless adopted by the Town official having final approval rights on each of the Submitted Materials. The Developer shall indemnify and hold the Town harmless from any claims relating to any costs for consul- tants or experts that the Developer agrees in writing to pay. {00025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 115 of 190 -4- 1.7. School Site The Owner's predecessor -in- interest dedicated a school site to the Marana Unified School District ( "MUSD ") within the exterior boundary of the Project for the location of an elementary school. To the best of the Town's knowledge, the dedication of the school site ful- fills the Owner's and the Developer's obligations to MUSD regarding schools. The dedication of the school site fulfills the Owner's and the Developer's obligations to the Town regarding schools and the Town agrees that no additional payment or other compensation to MUSD is ne- cessary to comply with the Town's requirements. 1.8. Acceptance of Improvements The Town Engineer shall schedule a Town Council agen- da item for Town acceptance of public infrastructure improvements (or, if the Town's procedures are revised such that the Town's acceptance of public infrastructure improvements no longer re- quire Town Council approval, the Town shall accept public infrastructure improvements) within 30 days after the Developer submits to the Town Engineer a completed public infrastructure close -out package conforming to the requirements set forth in MDC section 06.06 (or its succes- sor provision). 1.9. Developer's Warranty The Developer shall warrant the materials and workmanship of all public infrastructure improvements for a period of thirteen months after the date of the Town Engineer's receipt of a complete close -out package (see Section 1.8 above). Article 2. Infrastructure Improvements 2.1. Infrastructure Plan The approved Infrastructure Plan for the Property consists of the in- frastructure improvements described in this Article. The Developer may implement and phase the infrastructure improvements to the Property in conformance with the Infrastructure Plan, the phasing described in Article 3 below, and all other requirements of this Development Agree- ment. 2.2. Construction of Infrastructure Improvements As a condition to the Developer's devel- opment of the Project, the Developer, at its sole cost, shall cause the items of public infrastruc- ture described in the Infrastructure Plan (the "Infrastructure Improvements ") to be constructed as approved by the Town with respect to development of all or any portion of the Property. The In- frastructure Improvements shall be constructed in accordance with the requirements for construc- tion of infrastructure improvements similar to the proposed construction. 2.3. Infrastructure Plan Amendment The Parties acknowledge that amendments to the Infra- structure Plan may be necessary from time to time to reflect changes in market conditions, de- velopment financing and /or to meet the new requirements of one or more of the potential users or builders of any part of the Property, or as more detailed information becomes available. If and when the Parties find that changes or adjustments are necessary or appropriate, the Parties agree to cooperate in good faith to effectuate such changes or adjustments through amendments to the Infrastructure Plan. Minor amendments shall require the approval of the Town Engineer and the Town Manager, without prior notice or hearing to the public. Major amendments shall require the approval of the Town Council. 2.4. Transportation Improvements The Developer shall have the following responsibilities with respect to the transportation improvements described below (the "Transportation Improve- ments"), to be phased with the Subdivision Improvements and Infrastructure Improvements pur- suant to Article 3 below: 100025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 116 of 190 -5- 2.4. 1. Twin Peaks Road Design In consultation with and under direction of Town Staff, the Developer shall prepare design plans and associated construction documents necessary for the reconstruction of Twin Peaks Road to its full four -lane arterial road cross - section ( "Twin Peaks Design "), as determined by the Town in consultation with Pima County. The currently anticipated four -lane arterial road cross - section is shown on Exhibit G . The Twin Peaks Design shall run from a point at the west boundary of the Project to the eastern inter- section of Twin Peaks Road and Silverbell Road (the intersection where Safeway is currently located). The Town and the Developer will confer as to the most appropriate location within the design scope to transition the design from a four -lane designation to a two -lane designa- tion, west of the intersection of Twin Peaks Road and Saguaro Highlands Drive. Within the Twin Peaks Design area, the design of turn lanes and storage lengths on Twin Peaks Road and intersecting roadways shall be based on recommendations made in the Town - approved December 2004 Traffic Impact Analysis prepared for the Project, or any subsequent versions that may be provided by the Developer and accepted by the Town. 2.4.2. Twin Peaks Road Construction The Developer shall design and construct Twin Peaks Road to one -half of its four -lane arterial road cross - section along the entire frontage of the Project from its west boundary to its east boundary. 2.4.2.1. The scope of construction shall include the installation of westbound right - turn lanes and eastbound left -turn lanes at Twin Peaks Road's intersection with Saguaro Peaks Boulevard and Saguaro Highlands Drive. 2.4.2.2. The Developer and the Town may mutually elect to construct interim im- provements to provide a more functional condition prior to the completion of permanent Twin Peaks Road construction. 2.4.2.3. The Developer shall not be responsible for costs associated with elements of construction required by the Town, Pima County, or any other governmental authority to protect or accommodate native species. 2.4.3. Twin Peaks Road Traffic Signal The Developer shall design, construct and install (or fund the cost of) a three - legged traffic signal at the intersection of Twin Peaks Road and Saguaro Peaks Boulevard when it builds the Twin Peaks Road improvements (see Sec- tion 3.4.4 below). 2.4.4. Lambert Lane The Developer shall design and construct Lambert Lane from Air- line Road to a point 4,900 feet east of Airline Road to the Town's standards for a two -lane rural collector, as shown on the cross - section set forth in Exhibit H, including: 2.4.4.1. Realignment of the curved segment of Lambert Lane located between 4,130 feet and 4,900 feet east of Airline Road; 2.4.4.2. Addition of westbound left -turn lanes at all of the Project's streets that inter- sect Lambert Lane; and 2.4.4.3. An eastbound right -turn lane at the intersection of Lambert Lane and Saguaro Peaks Boulevard. 2.4.5. Airline Road The Developer shall design and construct Airline Road from Avra Valley Road to Lambert Lane to the Town's standards for a two -lane rural collector, as {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 117 of 190 -6- shown on the cross - section set forth in Exhibit H , including a southbound left -turn lane at the Lambert Lane intersection. 2.4.6. Payment in Lieu The Developer and the Town may mutually choose to enter into a payment -in -lieu agreement for any or all of the Transportation Improvements. 2.5. Public Recreational Amenities The Developer shall construct approximately 42 acres of "Public Recreational Amenities" within the area encompassed by the Saguaro Springs Block Plat, consisting of the Park (addressed in Section 2.6 below) and the Trails (addressed in Sec- tion 2.8 below). 2.6. The Park The Developer shall design and construct public park improvements and amenities as depicted on Exhibit I attached to this Development Agreement (the "Park ") on the Park Site consistent with the less restrictive of the Town's Parks and Recreation Department Standard Specifications and Details for Park Development in effect as of the date of this Devel- opment Agreement or the Town's Parks and Recreation Department Standard Specifications and Details for Park Development in effect at the time development occurs, as follows: 2.6.1. The Parties will use their best efforts to enter into a "Park Master Planning Process" to address scope, amenities, budgeting, etc., of the Park, consistent with the follow- ing general principles: 2.6.1.1. The Developer shall not be required to contribute more than $2,500,000 to- ward the design and construction of the Park. This amount shall not include the value of the land dedicated for the Park. 2.6.1.2. Saguaro Springs Block Plat Block A (Retention/Detention Basin) (the `Ba- sin") will provide approximately 20 acres of usable space for ball field development and other recreational amenities. 2.6.1.3. The athletic fields within the Park site shall be lighted in a manner consistent with the Town of Marana Lighting Ordinance. 2.6.1.4. The Basin bottom shall have a width of approximately 340 feet with slopes constructed at a 4 to 1 ratio (horizontal to vertical). 2.6.1.5. The Basin floor shall have a minimum slope of one -half of one percent (0.005 %) and both the floor and slopes shall have a turf surface. 2.6.1.6. The approximately 6.67 acres of the adjoining Saguaro Springs Block Plat Block 5 may include parking, a ramada, restroom facilities, etc. 2.6.1.7. The Park Master Plan shall integrate the MUSD School Site and the portion of the Park located on Saguaro Springs Block Plat Block 5. 2.6.1.8. The Park Master Plan shall integrate with development for future Park phas- es, if any. 2.6.1.9. Unless otherwise agreed to by the Town and the Developer, the Park shall be accessed directly from Saguaro Highlands Drive, with no direct access allowed from res- idential lots by access gates or other means. 2.6.1.10. The size, dimensions, uses and other aspects of the Park may be modified by written memorandum signed by the Developer and the Town Manager. t00025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 118 of 190 -7- 2.6.2. Upon the conclusion of the Park Master Planning Process, the Developer shall submit landscape plans and improvements plans for the Park to the Town's Parks and Recreation Director for review and approval. 2.6.3. Upon completion of the Park (or Separately - Useable Portion) in accordance with the approved landscape plans and improvement plans, the Developer shall transfer ownership of all Park improvements (or the Separately - Useable Portion) to the Town by bill of sale or other documentation reasonably requested by the Town. 2.6.4. Sections 1.8 and 1.9 above shall apply with respect to the acceptance and warranty of the Park (or any Separately- Useable Portion). 2.6.5. The term "Separately- Useable Portion" shall refer to a phase or group of Park im- provements which the Town Parks and Recreation Director or Town Manager agrees in writ- ing are separately useable by and useful to the public without the completion of the remain- ing Park improvements. 2.6.6. Each homebuilder shall disclose in writing in its sales documents to residential home buyers within the Project that the athletic fields within the Park will be lighted. The disclosure may be included in the subdivision public report provided to home buyers as re- quired by the Arizona Department of Real Estate. This notice obligation does not apply to re- sales by residential homeowners within the Project. 2.6.7. The final subdivision plats for Saguaro Springs Block Plat Blocks 2A, 4, 5 and 6 shall include a general note disclosing that the athletic fields within the Park will be lighted. 2.7. Drainate and Retention Areas The Owner and its predecessors -in- interest have dedicat- ed to the Town and have substantially completed construction of the drainage and retention areas depicted on the Saguaro Springs Block Plat as Block A, Block B, Block C, and Block D, consist- ing of about 75.75 acres of land (the "Drainage and Retention Areas "). Saguaro Springs Block Plat Block A, encompassing approximately 22.59 acres (the "Basin "), is part of the Park Site. The Drainage and Retention Areas shall provide open space to enhance the appearance of the Project. 2.8. The Trails The Developer shall construct public trails (the "Trails ") within the Drainage and Retention Areas in accordance with the following: 2.8.1. The Developer shall be given credit for 45 square feet of Public Recreational Amenities (see Section 2.5 above) for every linear foot of Trails constructed within the Drai- nage and Retention Areas. 2.8.2. Except as otherwise modified by written memorandum signed by the Developer and the Town Manager, primary Trails constructed within or adjacent to the Drainage and Retention Areas shall be predominantly ten feet wide and shall be paved, and secondary Trails shall be less than ten feet wide and may be "soft trails" such as stabilized decomposed granite or equivalent materials. 2.8.3. All Trails shall incorporate adjoining landscaping but are not required to be fully improved "greenways." 2.8.4. Upon completion of the Trails, the Owner shall transfer ownership of all Trails im- provements within the Drainage and Retention Areas to the Town by bill of sale or other do- cumentation reasonably requested by the Town. I f 00025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 119 of 190 -8- I 2.8.5. The Developer, the Saguaro Springs CFD, or any property owners association des- ignated by the Developer shall be responsible for maintaining the Trails within the Drainage and Retention Areas so long as a valid landscaping license agreement remains in effect be- tween the Town and such entity. 2.9. Median Landscaping As a condition to the Developer's development of the Project, the Developer shall construct and install median landscaping within the Project in accordance with the Town's then applicable standards. Landscaping will be designed for low maintenance, em- ploying native materials installed in a natural manner as opposed to more formal plantings that require a higher level of maintenance. Landscaping installed within rights -of -way adjoining and within the Project will be maintained by a property owners association or similar entity so long as a valid landscaping license agreement remains in effect between the Town and such entity. 2.10. ASLD Drainage Channel Improvements The Owner's predecessor -in- interest, the Ari- zona State Land Department (the "ASLD "), and the Town are parties to that certain Drainage Channel Agreement dated September 2006 filed in ASLD File No. 56- 111572 (the "Drainage Channel Agreement "), which provides that the developer will construct an off -site drainage out - fall channel and associated improvements on the ASLD land immediately west of the Property (the "ASLD Drainage Channel Improvements "). The ASLD Drainage Channel Improvements are part of the Incomplete Infrastructure Improvements (see Section 2.11 below). The Town submitted to the ASLD an application for a ten -year right -of -way for drainage purposes. The Owner's predecessor -in- interest did not complete the ASLD Drainage Channel Improvements to the Town's satisfaction and, therefore, the ASLD never issued the right -of -way as provided by the Drainage Channel Agreement. The Owner, the Developer, and the Town shall promptly con- fer in good faith to determine a cost - effective and quality solution for completion of the ASLD Drainage Channel Improvements in accordance with Section 2.11 below and, thereafter, the Owner and /or the Developer will make application to ASLD for a right of entry, or such other instrument as ASLD may require, to complete the ASLD Drainage Channel Improvements. Fol- lowing consultation with the ASLD, the Owner and/or the Developer, on behalf of the Town, will make a renewed right -of -way application with the ASLD for a drainage easement of ten or more years in the location of the ASLD Drainage Channel Improvements. The Owner and /or the Developer will pay all of the actual out -of- pocket costs and expenses incurred by the Town in connection with the acquisition of the right -of -way easement for drainage purposes, including, without limitation, application fees, surveying fees, engineering fees, inspection fees, and right - of -way acquisition costs, not otherwise paid to ASLD or bonded by the Owner's predecessor -in- interest. In connection with the right -of -way application, the Town will cooperate with the Own- er, the Developer and ASLD to grant to ASLD development rights for the benefit of the re- mainder of the ASLD land that are consistent with its improved development potential resulting from the ASLD Drainage Channel Improvements. 2.11. Incomplete Infrastructure Improvements The Parties acknowledge that various Infra- structure Improvements and subdivision improvements were partially constructed by the Own- er's predecessors -in- interest, or were not constructed by the Owner's predecessors -in- interest in accordance with the Town's approved plans and specifications. These improvements include Sa- guaro Peaks Boulevard and associated improvements, Saguaro Highlands Drive and associated improvements, public infrastructure improvements within Saguaro Springs Block Plat Blocks 8A, 8B and 4, an on -site system of drainage channels and associated improvements, the ASLD Drainage Channel Improvements and associated improvements, a water distribution sys- t00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 120 of 190 -9- tem including in- ground infrastructure and well site, pump station and storage tank, and a wastewater collection system including in- ground infrastructure, lift station and force main (the "Incomplete Infrastructure Improvements "). As a condition to the Developer's development of the Project, the Developer shall complete or replace the Incomplete Infrastructure Improvements to the reasonable satisfaction of the Town based on industry standards for engineering, design, construction and utility of such classes of infrastructure improvements and the Town shall accept the applicable components of the Incomplete Infrastructure Improvements as public infrastruc- ture and provide final approval and release of assurances for the applicable Incomplete Infra- structure Improvements. The Town and the Developer agree to confer in good faith toward cost- effective and quality solutions for completion or replacement of the Incomplete Infrastructure Improvements. The Developer may contract with outside consultants and/or conduct materials testing in an effort to best understand the current conditions and to identify the most cost - effective solutions for completion and /or remediation of the Incomplete Infrastructure Improve- ments. The Town agrees to consider and assess in good faith any such viable solutions so long as the solutions result in completed improvements that meet Town standards for acceptance, main- tenance, performance and operation. Article 3. Project Phasing. 3.1. Initial Phase The first phase of the Project was originally intended to include 611 resi- dential lots and associated improvements within Saguaro Springs Block Plat Blocks 8A, 8B, and 4. Phase 1A of the Project will now encompass Block 8B only. The Lots within Blocks 8A and 4 will comprise Phase 1B of the Project, either separately in either order or together. Phases IA and 1B (the combination of Blocks 8A, 8B, and 4) contain 611 total residential lots. 3.2. Phase IA - Block 8B . The following items shall be completed prior to the Town releas- ing the Developer from its subdivision assurances, including any partial subdivision assurance releases: 3.2.1. The completion of the Incomplete Infrastructure Improvements located within or directly benefiting Block 8B. 3.2.2. The completion of Saguaro Peaks Boulevard from Twin Peaks Road to Hidden Sa- guaro Trail. 3.2.3. The completion of Hidden Saguaro Trail from Saguaro Peaks Boulevard to its ter- minus at the drainage channel at the northeast corner of Block 8B. 3.2.4. Application of a slurry seal coating or some other form of roadway topping accept- able to the Town over all of Saguaro Highlands Drive, from Saguaro Peaks Boulevard to Twin Peaks Road, and Saguaro Peaks Boulevard from Hidden Saguaro Trail to Saguaro Highlands Drive. 3.2.5. The completion of the Project's water Infrastructure Improvements in accordance with the separate water service agreement. 3.2.6. The completion of the Project's wastewater Infrastructure Improvements in accor- dance with the separate sewer service agreement. 3.2.7. The substantial completion of functional Project on -site drainage Infrastructure Improvements, excluding non - drainage infrastructure located in the Drainage and Retention Areas (such as landscaping, Trails, the Park, open space, etc.). {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 121 of 190 _10- 3.2.8. The completion of the ASLD Drainage Channel Improvements. 3.3. Phase 1B - Block 4 and /or 8A . The Developer intends to develop residential lots in Block 8A and /or Block 4 sequentially in either order or together as the market dictates as Phase 1B of the Project. The following items shall be completed prior to the Town releasing the owner from its subdivision assurances within Block 8A or Block 4, including any partial subdivision assurance releases. 3.3.1. The construction of the applicable subdivision improvements. With respect to con- struction of the subdivision improvements, each Block in Phase 113 will be considered inde- pendently of one another. 3.3.2. The construction of Saguaro Highlands Drive, from Saguaro Peaks Boulevard to Twin Peaks Road. 3.3.3. The construction of Saguaro Peaks Boulevard from Hidden Saguaro Trail to Sagu- aro Highlands Drive. 3.4. Future Phasing The phasing of future development of the Project will be determined in the future as the market dictates. However, the following items will be phased as follows: 3.4.1. Saguaro Peaks Boulevard Construction of the unfinished portion of Saguaro Peaks Boulevard, from Saguaro Highlands Drive to Lambert Lane will be completed prior to the is- suance of a permit (other than a model home permit) in any Block other than Blocks 8A, 8B, and 4, i.e., prior to the Town's issuance of the 612 single - family residential building permit within the Project). 3.4.2. Lambert Lane East The Developer will commence construction of the east phase of Lambert Lane from the intersection of Lambert Lane and Saguaro Peaks Boulevard east to a termination point 4,900 feet east of Airline Road prior to the issuance of the 800 single - family residential building permit within the Project. 3.4.3. Public Park The Developer will commence construction of the Park improvements prior to the issuance of the 1,000 single - family residential building permit within the Project. 3.4.4. Twin Peaks Road The Developer shall not be required to commence construction of its half - street improvements for Twin Peaks Road until after the third anniversary of the date this Development Agreement is recorded. Thereafter, the Developer shall commence construction within 90 days after receipt of the Town's written notice to the Developer to be- gin construction of the Twin Peaks Road improvements. The Town's written notice to begin construction includes an implied Town representation that the Town has secured all neces- sary right -of -way and easements necessary to construct the improvements in accordance with the approved plans and specifications. The Town shall indemnify and hold harmless the Owner and the Developer from and against all construction claims and third -party claims re- sulting from the Town's failure to secure property rights needed for the construction. The Town will give written notice to the Developer to begin construction of the Twin Peaks Road improvements at the earlier of 3.4.4.1. the issuance of the 1,200 single - family residential building permit within the Project, or {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 122 of 190 3.4.4.2. within one year after the Town notifies the Developer in writing that Twin Peaks Road exceeds 12,000 Average Daily Trips based on a current traffic report. 3.4.5. Lambert Lane West /Airline Road The Developer will complete construction of Lambert Lane West /Airline Road at the earlier of (i) the issuance of the 1,500 single - family residential building permit within the Project, or (ii) prior to the issuance of the first single - family residential building permit (other than a model home permit) in Block 1 of the Project. Article 4. Other Matters Relating to Improvements. 4.1. Road Permits and Right- of- Way Acquisition All rights -of -way necessary from property within the Project owned by the Owner for the construction of the Transportation Improvements shall be or have been provided at no cost to the Town. The Town shall acquire all other rights -of- way and all permits necessary for the construction of the Transportation Improvements. 4.2. Water Improvements The Town and the Owner's predecessor -in- interest entered into that certain Development Agreement for Construction of Water Facilities and Provision of Water Utility Service dated February 12, 2001, and recorded in Docket 11742 at Page 2771, Official Records of Pima County, Arizona, as amended (the "Water Service Agreement "). In connection with its obligations under the Water Service Agreement, the Owner's predecessor -in- interest constructed an eight inch water main from the north boundary of the Project through the right -of- way for Silverbell Road to the Town's existing La Puerta del Norte water main, in accordance with plan set PRV -99 -055 approved by the Town's Water Department (the "Water Main Im- provements"). The construction and installation of the Water Main Improvements satisfies the Developer's obligation to complete all onsite and offsite water utilities infrastructure required by agreements for installation of subdivision water utilities infrastructure for the subdivisions that constitute the Project. The Parties agree to confer in good faith to amend the Water Service Agreement or enter into a new agreement that will supersede the Water Service Agreement to reflect the current status and planning of the Project. 4.3. Wastewater Improvements As of the date of this Agreement, the Town plans to provide wastewater service to the Project, but does not have all of the necessary governmental permits, licenses and approvals to do so. Until the Town has all of the necessary governmental permits, licenses and approvals, the Town understands and agrees that the Developer must obtain waste- water services for the Project from Pima County. The Town acknowledges that wastewater infra- structure necessary for the Project to be served by Pima County has already been installed and substantially completed. If the Town becomes the wastewater utility service provider for the Project, the Town will not require the Owner or the Developer to pay for, or construct or install, any wastewater infrastructure improvements that are needed to transition wastewater utility ser- vice for the Project from Pima County to the Town. If it is unclear whether Pima County or the Town is the wastewater utility service provider for the Project when the Developer requests wastewater service, the Developer may obtain wastewater services from the entity that the De- veloper determines to be most beneficial to the Project. If the Developer enters into a wastewater services agreement with Pima County and the Town later becomes the sewer service provider for the Project, the Town will assume the obligations of Pima County under any wastewater services agreement between the Owner or the Developer and Pima County and the Town will not require the Owner or the Developer to pay for, or construct or install, any wastewater infrastructure im- provements other than those wastewater infrastructure improvements required under the waste- water services agreement between the Owner or the Developer and Pima County and will not t00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 123 of 190 - 12 - require any modifications, betterments or changes to any wastewater infrastructure improve- ments constructed and installed by the Developer that met Pima County's standards and re- quirements at the time of construction or were accepted by Pima County. 4.4. Right of Entry for Park and Trails Construction The Town hereby grants the Developer a right of entry to enter upon the Park Site and the Drainage and Retention Areas for the purpos- es of constructing the Park and the Trails; provided, however, that the Developer shall obtain all necessary permits and shall comply with the following during the construction of the Park and the Trails: 4.4.1. The Developer shall defend, indemnify and hold harmless the Town, its officers, agents, and employees from and against any and all bodily injury, death or property damage arising out of the Developer's negligent acts or omissions in connection with the Developer's or its contractors' entry onto the Park Site and the Drainage and Retention Areas during the construction of the Park and the Trails. 4.4.2. The Developer (or the applicable property owners' association) shall obtain liabili- ty insurance covering the Park Site and the Drainage and Retention Areas in minimum amounts of $1,000,000.00 general liability per occurrence with a minimum $2,000,000.00 general aggregate limit per occurrence. This insurance shall remain in force until the Town formally accepts the Park and the Trails. The Town shall be named as an "additional insured" under the liability insurance policy and shall be given at least 30 calendar days' written no- tice prior to cancellation. Before the Developer begins any work on the Park Site or the Drai- nage and Retention Areas, one or more certificates of insurance evidencing coverage as de- scribed in this paragraph shall be filed with the Town, care of the Marana Legal Department, Real Property Services Division, 11555 West Civic Center Drive Bldg A3, Marana, Arizona 85653 -7006. The Developer shall also file all certificates of insurance each time the policy is updated or extended. 4.4.3. The Developer (or the applicable property owners' association) shall be responsi- ble to provide security for the Park and the Trails during construction. 4.5. Access for Construction of Improvements The Developer, its agents and employees, shall have the right to enter and remain upon and cross over any Town easements or rights -of- way to the extent reasonably necessary to facilitate construction, or to perform necessary main- tenance or repairs of Infrastructure Improvements subject to the terms and conditions in Chapter 12 -7 ( "Construction in town rights -of- way ") of the Marana Town Code (or the applicable provi- sions of the Marana Town Code in effect at the time development occurs if less restrictive) and upon obtaining all necessary permits. 4.6. Right -of -Way Abandonment The Town shall abandon any unnecessary public rights -of- way or easements currently located on the Property, as necessary to implement the Infrastructure Plan, in conformance with applicable Arizona law and Town ordinances, resolutions and rules in effect at the time of abandonment. 4.7. Right -of -Way Acquisition The Town shall cooperate reasonably with the Owner and the Developer and assist the Owner and the Developer to acquire any public rights -of -way or public easements needed to implement the Infrastructure Plan, in a manner consistent with the follow- ing: {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 124 of 190 - 13 - 4.7. 1. The Owner or the Developer shall use commercially reasonable efforts to acquire any and all property rights needed for the utilities and other Infrastructure Improvements serving the Property, including, without limitation, any easements under and across North Quarry Road. 4.7.2. If the Owner or the Developer is unable to obtain any necessary property rights on commercially reasonable terms and conditions, the Owner or the Developer may notify the Town in writing requesting the Town to exercise its power of eminent domain to acquire the necessary property rights. 4.7.3. Upon receiving notice from the Owner or the Developer, the Town shall obtain and provide to the Owner or the Developer a cost estimate for completing the appraisal, any ne- cessary land surveying or legal description preparation, and title work (litigation guarantee) for the acquisition. 4.7.4. Upon the Owner or the Developer's deposit with the Town of funds sufficient to cover the costs set forth in Subsection 4.7.3 above, the Town shall promptly initiate the ap- praisal of the property rights. 4.7.5. Once the appraisal is obtained, if the Owner or the Developer elects to have the Town proceed with the eminent domain proceeding, the Owner or the Developer shall depo- sit with the Town an amount equal to the appraised value of the property rights and the Town's reasonable estimate of the actual out -of- pocket attorneys' fees and costs to prosecute the eminent domain proceedings. If the Town uses its in -house counsel to prosecute the emi- nent domain proceedings, "actual out -of- pocket attorneys' fees" shall be calculated at $100 per hour of attorney time and $40 per hour of paralegal time. If the Town is unable to use its in -house counsel to prosecute the eminent domain proceedings, the Town will use the proce- dure set forth in Section 1.6 above to select outside counsel. 4.7.6. Upon the Owner or the Developer's deposit with the Town of funds sufficient to cover the costs set forth in Subsection 4.7.5 above, the Town shall promptly make the offer required under A.R.S. § 12- 1116(A), and if the offer is not timely accepted, file a condemna- tion lawsuit in Pima County Superior Court to obtain the necessary property rights. 4.7.7. If the Town exercises its power of eminent domain pursuant to this Section 4.7 at the request of the Owner or the Developer, the Owner or the Developer shall pay all reasona- ble costs of expenses of such condemnation action, including, without limitation, the con- demnation award, costs of litigation (including without limitation expert witness fees), and reasonable attorneys' fees. 4.7.8. If the Town settles an eminent domain lawsuit brought pursuant to this Section 4.7, the Owner or the Developer shall pay the settlement costs, provided that those costs do not exceed the higher of (a) 120% of the appraised value of the condemnation parcel or (b) an amount approved by the Owner or the Developer. 4.7.9. The Town will not withhold building permits or final inspections (certificates of occupancy), or prohibit the sale, of homes while property rights are being acquired in a man- ner consistent with this Section 4.7 and so long as the homes have continuous, safe and legal vehicular access and continuously available water, sewer, and electric utility service. 4.8. Joint Town Eminent Domain Action The Town, in its sole and absolute discretion, may choose to acquire property rights beyond those the Owner or the Developer has requested pur- {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 125 of 190 -14- suant to Section 4.7 above. If it does so, the Town shall be responsible for all costs and expenses related to that eminent domain action, including, without limitation, any final judgment or set- tlement amount. If the Town prosecutes an eminent domain action for these additional property rights against the same private property owner whose rights are being acquired pursuant to Sec- tion 4.7 above, the Town may acquire all of the needed property rights in a joint prosecution of the eminent domain actions, and the Parties shall share the joint costs on an equitable basis as determined by the Owner or the Developer and the Town. 4.9. Saguaro Springs CFD The Saguaro Springs CFD was created to finance the construction and /or acquisition of certain "public infrastructure" (as that term is defined in A.R.S. § 48 -701) benefiting the Project. 4.9.1. The policies and financial terms and Owner and Developer security obligations for the Saguaro Springs CFD shall be similar to and consistent with the District Development, Financing Participation and Intergovernmental Agreement approved by the Saguaro Springs CFD Board of Directors on September 4, 2007, with such modifications as the Parties mu- tually approve. 4.9.2. The CFD Development Agreement and the formation documents referenced in Re- cital O above shall govern all matters relating to the Saguaro Springs CFD. 4.9.3. The Town understands and acknowledges that the Owner acquired the Project through foreclosure and does not have books and records from the prior owners of the Prop- erty pertaining to public bidding. To the extent not prohibited by applicable law, the Parties will include in the CFD Development Agreement provisions to allow public infrastructure appraisal or other evidence of the value of the public infrastructure improvements for pur- poses of reimbursing the Developer for public infrastructure costs of the Project. Alternative- ly, to the extent not prohibited by applicable law, the Saguaro Springs CFD shall acquire the real property interest containing the eligible public infrastructure at the fair market value of the real property interest as improved, including the eligible public infrastructure. 4.9.4. Costs of all public infrastructure improvements constructed or to be constructed for the Project by the Developer or its predecessors -in- interest will be eligible for reimbursement from Saguaro Springs CFD general obligation, special assessment, and revenue bond proceeds at the request of the Developer, subject to the limitations, terms and provisions of the CFD Development Agreement. 4.9.5. For purposes of Saguaro Springs CFD reimbursement eligibility, costs of public in- frastructure improvements may include, without limitation, costs of engineering, permits, fees, surveying, staking, studies, roadway, sidewalk, street lights, traffic signalization, street signage, street lights, water, sewer, storm drainage, drainage and other related expenditures, public right -of -way acquisition costs (including, without limitation, attorneys' fees and con- demnation awards or settlement amounts incurred by the Owner or the Developer pursuant to Section 4.7 above), and payments in lieu of these costs, as set forth in and subject to the limi- tations, terms and provisions of the CFD Development Agreement. 4.9.6. Any public infrastructure improvements that are to be constructed, installed, ac- quired or funded by the Developer may be constructed, installed or funded directly by the CFD, or the CFD may acquire the public infrastructure improvements that are constructed, {00025853.1)OC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 126 of 190 - 15 - installed, acquired, or funded by the Developer and reimburse the Developer for the cost the - reof, subject to the limitations, terms and provisions of the CFD Development Agreement. 4.10. Reimbursement from Others If real property that benefits from the Infrastructure Im- provements ( "Benefited Parcel ") is the subject of a rezoning application or other request for go- vernmental approval involving the exercise of the Town's legislative discretion, the Town shall consider imposing a stipulation or condition requiring the Benefited Parcel to reimburse the De- veloper for the Benefited Parcel's proportionate share of the actual cost incurred by the Develop- er (and not paid or reimbursed by the Town) in connection with the construction of the Infra- structure Improvements being utilized by the Benefited Parcel. Article 5. The Rights of the Owner and the Developer Regarding Future Town Actions 5.1. P_ rotected Development Rights The protected development rights (as defined in A.R.S. § 9 -1201 paragraph 3) granted pursuant to this Development Agreement and the Development Criteria shall remain in effect and shall not be changed without the agreement of the Owner and the Developer for the term of this Development Agreement. 5.2. Development Impact Fee Credits Based on the cost identified in the infrastructure im- provements plan supporting a Town - adopted development impact fee, the Town shall provide a credit toward the payment of the Town - adopted development impact fee for the Owner or the Owner's predecessor -in- interest's dedication of public sites, and construction or installation of improvements and other necessary public services (or in -lieu payments) included in the Town infrastructure improvements plan supporting the Town- adopted development impact fee and for which a Town - adopted development impact fee is assessed. For purposes of this paragraph, pub - lic sites, improvements and other necessary public services includes any public improvements or publicly dedicated lands addressed in this Development Agreement and any other public im- provements of the type constructed by the Developer or public land dedicated, and any in -lieu payments made, by the Owner or the Developer for which the Town has adopted a development impact fee. Credits shall be provided as required by A.R.S. § 9- 463.05, as it may be amended. The Developer is not required to comply with the statutory public procurement procedures in or- der to receive development impact fee credits. At the Developer's option, no portion of the de- velopment impact fee credits applicable to the Park (see Section 2.6, including the publicly dedi- cated lands for the Park) shall be allocated to Saguaro Springs Block Plat Block 1 (or designated portions of Block 1). 5.3. No Moratorium To allow the Developer to have a predictable source of funds to amort- ize the cost of the Infrastructure Improvements, the Town shall not impose a moratorium against any development on the Property that is consistent with the Development Criteria or this Devel- opment Agreement. This prohibition includes any restriction, condition or any other method that will delay or limit the rate, timing or sequencing of the planning, development, construction, use or disposition of any part of the Property. This prohibition shall not apply to the extent that a li- mitation may be necessary for the Town (a) to comply with the minimum mandatory require- ments of state or federal laws and regulations that the Town is legally required to adopt and en- force to the extent that this Development Agreement cannot be amended to allow compliance with the minimum requirements of such state or federal laws or regulations; (b) to alleviate legi- timate severe threats to public health and safety of the citizens of the Town not related to the In- frastructure Improvements; or (c) to enforce floodplain restrictions before a letter of map revi- {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 127 of 190 -16- sion (revising a flood insurance rate map) becomes effective. Any such limitations shall not be arbitrary, and it shall be the most minimal and least intrusive possible. 5.4. Vested Rights Nothing in this Development Agreement shall preclude the Owner or the Developer from claiming that the Developer has vested rights to complete the development of the Project in accordance with currently- applicable regulations based on the significant invest- ment and improvements made on the Property by the Owner and its predecessors in interest. These claimed vested rights include, but are not limited to, the uses and the range of densities and intensities of uses provided in the Development Criteria. Article 6. Cooperation and Alternative Dispute Resolution. 6.1. Appointment of Representatives To further the commitment of the Parties to cooperate in the implementation of the Zoning Ordinances and this Development Agreement, the Parties each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Owner and the Developer. The initial representative for the Town (the "Town Representative ") shall be Kevin Kish or a replacement party to be selected by the Town Manager, and the initial representative for the Owner and the Developer (the "Developer Representative ") shall be Brian Baehr or a replacement project manager to be selected by the Developer. The representatives shall be available at all reasonable times to discuss and review the performance of the Parties to this Development Agreement and the development of the Project pursuant to the Zoning Ordinances, this Development Agreement, and the MDC. 6.2. Default; Remedies If either Party defaults (the "Defaulting Party ") with respect to any of that Party's obligations under this Development Agreement, the other Party (the "Non - Defaulting Party ") shall be entitled to give written notice in the manner prescribed in Section 8.1 below to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected (the "Dispute "). The Defaulting Party shall then have (i) 20 days from the date of the notice of the Dispute 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 no- tice of the Dispute to cure the default if action other than the payment of money is reasonably required, or if the non - monetary default cannot reasonably be cured within 30 days, then such longer period as may be reasonably required, provided and so long as the cure is promptly com- menced within such 30 -day period thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this Section, then the Non - Defaulting Party shall be entitled to begin the mediation and arbitration proceedings set forth in Sections 6.3 and 6.4 below. The Parties agree that due to the size, nature and scope of the Project, and due to the fact that it may not be practical or possible to restore the Project to its condition prior to the Developer's development and improvement work, once implementation of this Development 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 Development Agree- ment. This Section shall not limit any other rights, remedies, or causes of action that either Party may have at law or in equity. A default by one Developer shall not constitute a default by any other Developer and the Town may not withhold or delay issuance of building permits or certifi- cates of occupancy or other permits, approvals or licenses from one Developer due to the default of another Developer. Nothing in this paragraph shall be construed to require the Town to issue a permit or grant a development approval to the Owner or the Developer (or their successors or assigns) if a successor or assignee fails to commence or complete improvements required by this Development Agreement prior to issuance of the permit or granting of the approval. For exam - {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 128 of 190 -17- ple, if the Owner or the Developer (or their successors or assins) do not commence construction of the Park improvements prior to the issuance of the 1,000 single - family residential building permit within the Project pursuant to Section 3.4.3 above, the Town may thereafter withhold res- idential building permits from all Owners and Developers (and their successors and assigns) within the Project until the Park improvements are commenced. 6.3. Mediation If there is a Dispute that the Parties cannot resolve between themselves, the Parties agree that there shall be a 45 -day moratorium on arbitration during which time the Parties agree to attempt to settle the dispute by non - binding mediation before commencement of arbitra- tion. The mediation shall be held under the commercial mediation rules of the American Arbitra- tion Association ( "AAA "), but not under the auspices of the AAA. The matter in dispute shall be submitted to a mediator mutually selected by the 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 es- tate 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. 6.4. Mandatory Arbitration After mediation, as provided for in this Article, any dispute, con- troversy, claim or cause of action arising out of or relating to this Development Agreement shall be settled by submission of the matter by both Parties to binding arbitration in accordance with the rules of the AAA and the Arizona Uniform Arbitration Act, A.R.S. § 12 -501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdic- tion. The arbitration shall be held under the rules of the AAA, but not under the auspices of the AAA. The matter in dispute shall be submitted to an arbitrator mutually selected by the Develop- er and the Town. If the Parties cannot agree upon the selection of an arbitrator 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 arbitrator. The arbitrator selected shall have at least ten years' experience in arbitrating disputes relating to real estate development. Article 7. Lender Protection. 7.1. Notices The Owner and the Developer shall have the right at any time, and as often as they desire, to finance the Property and to secure the financing with a lien or liens against the Property. Subject to notice to the Town by the lender ( "Lender ") as to the name, address, facsi- mile number, e-mail address or other means of communication for notice purposes, of the Lend- er, the Town shall use good faith efforts to give notice to Lender of any default or Dispute at the same time the Town gives notice of the same default or Dispute to the Developer. 7.2. Collateral Assignment Notwithstanding any other provision of this Development Agreement, the Owner or the Developer may assign all or part of its rights and duties under this Development Agreement to any financial institution from which the Owner or the Developer has borrowed funds for use in acquiring the Property or constructing the Infrastructure Improvements or otherwise developing the Property without such financial institution assuming the obligations of the Owner or the Developer under this Development Agreement, but without releasing the Owner or the Developer from its obligations under this Development Agreement. {00025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 129 of 190 -18- 7.3. Estoppel Certificate Within 30 days following any written request by either the Town, the Owner, the Developer, Lender or any prospective Lender, which request can be made from time to time, the other shall confirm the following in writing to the requesting party and/or its prospective investors, purchasers, lenders or encumbrancers, that (a) this Development Agree- ment is unmodified and in full force and effect (or reasons why it is not); (b) there are no un- cured Defaults under this Development Agreement (or reasons why there are); and (c) any other information reasonably requested by the requesting party. Article 8. Notices and Filings. 8.1. Manner of Serving All notices, filings, consents, approvals and other communications provided for herein or given in connection herewith shall be validly given, filed, made, transmit- ted or served if in writing and delivered personally or sent by registered or certified United States mail, postage prepaid, if to: The Town: Town of Marana Town Manager 11555 North Civic Center Drive Building A3 Marana, Arizona 85653 With a required copy to: Town of Marana Town Attorney 11555 North Civic Center Drive Building A3 Marana, Arizona 85653 The Owner: Marana 670 Holdings, LLC 7377 East Doubletree Ranch Road Suite 100 Scottsdale, AZ 85258 Attention: Brian Baehr, Vice President, Land Development With required copy to: Fennemore Craig, P.C. 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012 -2913 Attention: Jay S. Kramer Grayhawk: [Insert] [Address] Attention: [Insert] With required copy to: Fennemore Craig, P.C. 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012 -2913 Attention: Jay S. Kramer or to such addresses as either Party hereto may from time to time designate in writing and deliver in like manner. Any such notice shall be deemed given and received upon personal delivery 100025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 130 of 190 - 19- against a signed acknowledgment of receipt or affidavit of delivery or three business days after deposit in the United States mail in the manner provided above. Article 9. General Terms and Conditions. 9.1. Annexation From time to time the Owner may add all or any portion of the Excluded Property to the Property by recording an annexation certificate that describes the land and states that the land is being added to the Property and is subjected to this Development Agreement. An annexation certificate shall be signed and acknowledged by the Owner and the fee simple title owner of the land to be annexed, if not the Owner, and recorded in the office of the Pima County Recorder. Upon annexation of any of the Excluded Property in accordance with this paragraph, the annexed land shall thereafter be subject to this Development Agreement and shall be auto- matically de- annexed from the Prior Development Agreement. 9.2. Term If not sooner terminated, this Development Agreement shall automatically termi- nate and shall thereafter be void for all purposes on December 31, 2031. If the Parties determine that a longer period is necessary for any reason, the term of this Development Agreement may be further extended by written agreement executed by the Parties. 9.3. Waiver No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the Town, the Owner, or the Developer of the breach of any covenant of this De- velopment Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Development Agreement. 9.4. Attorneys' Fees In case of any Dispute, the Party prevailing in any arbitration, court ac- tion or other proceeding shall be paid all reasonable costs, expert witness fees, litigation related costs and reasonable attorneys' fees by the non - prevailing Party, and if any judgment is secured by the prevailing Party, all such costs and fees shall be included in the judgment, such fees to be set by the arbitrator or court and not by a jury. Nothing in the use of the word "court" in the pre - ceding sentence shall constitute a waiver of Section 6.4 above, requiring disputes to be resolved by binding arbitration. 9.5. Counterparts This Development Agreement may be executed in two or more counter- parts, 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. 9.6. Headings The descriptive headings of this Development Agreement are intended to be used to assist in interpreting the meaning and construction of the provisions of this Development Agreement. 9.7. Recitals The recitals set forth at the beginning of this Development Agreement are here- by acknowledged, confirmed to be accurate and incorporated here by reference. 9.8. Exhibits Any exhibit attached hereto shall be deemed to have been incorporated herein by this reference with the same force and effect as if fully set forth in the body hereof. 9.9. Further Acts Each of the Parties shall execute and deliver all such documents and per- form all such acts as reasonably necessary, from time to time, to carry out the matters contem- plated by this Development Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any requests and applications for plat 100025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 131 of 190 _20- or permit approvals or revisions, and other necessary approvals relating to the development of the Project by the Developer and its successors. 9.10. Future Effect 9.10.1. Time of the Essence Time is of the essence of this Development Agreement. All of the provisions hereof shall inure to the benefit of and be binding upon the successors, as- signs and legal representatives of the Parties. 9.10.2. Successors and Assigns This Development Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties pursuant to A.R.S. § 9- 500.05 (D). Upon the conveyance of all or any portion of the Project (other than a Public Lot, as defined in Section 9.10.3 below), all of the Owner's (or its successor's) right, title, in- terest, duties, obligations and liabilities under this Development Agreement with respect to the portion of the Project conveyed and first arising after the effective date of such con- veyance shall automatically be assigned to, and assumed by, the purchaser of the property. The assigning Owner (or its successor) shall automatically be relieved of all duties, obliga- tions and liabilities arising from and after the effective date of such conveyance with respect to the portion of the Project conveyed. Notwithstanding the foregoing, the Owner (or its suc- cessor) and the purchaser of all or any portion of the Project may expressly delineate the rights, duties, obligations and liabilities under this Development Agreement being assigned and assumed or retained by a written instrument executed by the Owner (or its successor) and the purchaser, and recorded in the Pima County Recorder's office. Nothing in this paragraph shall be construed to require the Town to issue a permit or grant a development approval to the Owner or the Developer (or their successors or assigns) if a successor or assignee fails to commence or complete improvements required by this Development Agreement prior to is- suance of the permit or granting of the approval. For example, if the Owner or the Developer (or their successors or assigns) do not commence construction of the Park improvements prior to the issuance of the 1,000`" single - family residential building permit within the Project pursuant to Section 3.4.3 above, the Town may thereafter withhold residential building per - mits from all Owners and Developers (and their successors and assigns) within the Project until the Park improvements are commenced. 9.10.3. Termination Upon Sale to Public It is the intention of the Parties that although recorded, this Development Agreement shall not create conditions or exceptions to title or covenants running with the Property. Nevertheless, in order to alleviate any concern as to the effect of this Development Agreement on the status of title to any of the Property, this De- velopment 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 purchaser or user thereof, or any lot or parcel conveyed or dedicated to any governmental authority, utility pro- vider, school district or property owners association (a "Public Lot "), and thereupon such Public Lot shall be released from and no longer be subject to or burdened by the provisions of this Development Agreement. Nothing herein shall limit or affect the validity of docu- ments to be recorded other than this Development Agreement nor of the proposed bond obli- gations and tax assessments which, when imposed upon the Property, shall run with the Property in accordance with applicable laws. {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 132 of 190 -21- 9.11. No Partnership and Third Parties This Development Agreement is not intended to, and nothing contained in this Development Agreement shall, create any partnership, joint venture or other arrangement between the Parties. No term or provision of this Development Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a par- ty hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. 9.12. Other Instruments Each Party shall, promptly upon the request of the other, have ac- knowledged and delivered to the other any and all further instruments and assurances reasonably requested or appropriate to evidence or give effect to the provisions of this Development Agree- ment. 9.13. Conflict of Interest This Development Agreement is subject to A.R.S. § 38 -511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 9.14. Imposition of Duty y Law This Development Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. 9.15. Entire Development Agreement This Development Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Development Agreement. All prior and contemporaneous agreements, representations and understandings of the Parties, oral or written, are hereby superseded and merged into this Development Agreement. 9.16. Amendment No change or addition is to be made to this Development Agreement ex- cept by a written amendment executed by the Parties. Any amendment to this Development Agreement shall be recorded in the Pima County Recorder's office no later than ten days after the Parties have entered into the amendment. 9.17. Names and Plans The Owner shall be the sole owner of all names, titles, plans, draw- ings, specifications, ideas, programs, designs and work products of every nature at any time de- veloped, formulated or prepared by or at the instance of the Owner in connection with the Prop- erty or any Plans, provided, however, that in connection with any conveyance or portions of the Infrastructure as provided in this Development 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. 9.18. Good Standing: Authority The Owner and Grayhawk represent and warrant to the Town that they are duly formed and validly existing under the laws of the state of Arizona. The Town represents and warrants to the Owner and Grayhawk that it is an Arizona municipal corpo- ration with authority to enter into this Development Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Development Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 9.19. Severability If any provision of this Development Agreement is declared void, illegal, invalid or unenforceable, such provision shall be severed from this Development Agreement, which shall otherwise remain in full force and effect. If any applicable law or court of competent jurisdiction prohibits or excuses the Town from undertaking any contractual commitment to per- form any act hereunder, this Development Agreement shall remain in full force and effect, but the provision requiring such action shall be deemed to permit the Town to take such action at its discretion, if, however, the Town fails to take the action specified hereunder, the Developer shall {00025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 133 of 190 -22- be entitled to terminate this Development Agreement with respect to any portion of the Project owned by such Developer. 9.20. Governing Law This Development Agreement is entered into in Arizona and shall be construed and interpreted under the laws of the State of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 6.4 above, requiring disputes to be resolved by binding arbitration. 9.21. Interpretation This Development Agreement has been negotiated by the Parties, and no Party shall be deemed to have drafted this Development Agreement for purposes of construing any portion of this Development Agreement for or against any Party. 9.22. Recordation The Town shall record this Development Agreement in its entirety in the office of the Pima County Recorder no later than ten days after it has been executed by the Par- ties. 9.23. No Owner or Developer Representations Nothing contained in this Development Agreement shall be deemed to obligate the Town, the Owner, or the Developer to commence or complete any part or all of the development of the Property. 9.24. Approval If any Party is required pursuant to this Development Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld, delayed or conditioned. 9.25. Force Maieure If any Party shall be unable to observe or perform any covenant or con- dition of this Development Agreement by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Development Agreement so long as such Party shall use its commercially reasonable efforts to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition can be cured within a reasonable amount of time. "Force majeure" as used in this paragraph means any condition or event not reasonably within the control of such Party, including, without limita- tion, "acts of God;" strikes, lock -outs, or other disturbances of employer /employee relations; acts of public enemies; orders or restraints of any kind of the government of the United States or any state or subdivision thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots: epidemics; landslides; lightning; earth- quakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests; restraints of government and of people; explosions; and partial or entire failure of utilities; financial inability excluded. Failure to settle strikes, lock -outs and other disturbances of employer /employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing party or parties, in either case when such course is in the judgment of the Party hereto unfavorable to such Party, shall not constitute failure to use its best efforts to remedy such a condition. 9.26. Definitions Unless otherwise defined in this Development Agreement, all terms used in this Development Agreement shall have the meaning assigned to such terms in the Arizona Community Facilities District statutes, Arizona Revised Statutes Title 48 Article 6 (A.R.S. §§ 48 -701 through 48 -725), so long as such interpretation does not conflict with any other provision of this Development Agreement. 100025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 134 of 190 -23- IN WITNESS WHEREOF, the Parties have executed this Development Agreement as of the last date set forth below their representatives' respective signatures. THE TOWN: THE OWNER: TOWN OF MARANA, an Arizona municipal MARANA 670 HOLDINGS, LLC, an Arizona corporation limited liability company By: Grayhawk Holdings Inc., an Arizona By: corporation, Manager Ed Honea, Mayor ATTEST: B Name: Jocelyn C. Bronson, Town Clerk Title: APPROVED AS TO FORM: GRAYHAWK: [TO BE INSERTED], a ^ Frank Cassidy, Town Attorney By: [To be inserted], a ^, ^Manager By: Name: Title: STATE OF ARIZONA ) County of Maricopa ) The foregoing instrument was acknowledged before me this day of , 2011 by , the of Grayhawk Hold- ings Inc., an Arizona corporation, the Manager of MARANA 670 HOLDINGS, LLC, an Arizona limited liability company, on behalf thereof. Notary Public My commission expires: {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 135 of 190 -24- STATE OF ARIZONA ) County of Maricopa ) The foregoing instrument was acknowledged before me this day of , 2011 by , the of ^, a ^, the ^ Manager of [To BE INSERTED], a ^, on behalf thereof. Notary Public My commission expires: {00025853.DOC / 6} SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 136 of 190 -25- LIST OF EXHIBITS Exhibit A Property Depiction Exhibit B Property Legal Description Exhibit C Current MDC R -6 Residential zoning regulations Exhibit D Current MDC R -36 Residential zoning regulations Exhibit E Current Zone C Large Lot Zone zoning regulations Exhibit F Current Zone F Specific Plan (Saguaro Springs Specific Plan) zoning regulations Exhibit G Cross - section for a four -lane collector or arterial roadway (Twin Peaks Road) Exhibit H Cross - section for a two -lane rural collector roadway (Airline Road; Lambert Lane) Exhibit I Park {00025853.DOC / 61 SAGUARO BLOOM DEVELOPMENT AGREEMENT 7/8/20112:58 PM Regular Council Meeting - July 19, 2011 - Page 137 of 190 -26- Exhib% A-1" o _ y w � � cc m Q, (j(] d o b 'a N N •� m G1 C O . G =m co .7 0 U LL LL ^ W O 4 N a �O in Q L`S] C W C OO lam• �' �� � �� �� U� �r • X Y 4) ro S Fo Q . Ll a� o ..J N a h @ }• Co N W LA- co � 'OHO E � : : • . :: � G A am U a , T peon eutlJIV .. ry YV J � � CD $ e • Exhibit B Property Description THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF PIMA, STATE OF ARIZONA AND IS DESCRIBED AS FOLLOWS: PARCEL 1: Blocks I through 10, and Lots 1 through 9, in Saguaro Springs, as shown on the map recorded in Book 58 of Maps, Page 23, records of Pima County, Arizona; EXCEPT THEREFROM those parts of said Block 5 to be used for a Park Site and a School Site, described as follows: PARK SITE: All that portion of Block 5 of Saguaro Springs, Blocks 1 thru 10 and A thru D and Lots I thru 9 and A and B, recorded in Book 58 of Maps and Plats at Page 23 in the office of the County Recorder, Pima County, Arizona, more particularly described as follows: BEGINNING at the Southwest corner of said Block 5; THENCE along the West line of said Block 5 North 14 °24'29" West a distance of 481.02 feet to the beginning of a tangent curve concave to the East having a radius of 30.00 feet and a central angle of 51 °43'31 "; THENCE continuing along said West line and along the arc of said curve to the right a distance of 27.08 feet to a point of tangency on the Northwest line of said Block 5; THENCE along said Northwest line North 37 °19'02" East a distance of 755.61 feet; THENCE continuing along said Northwest line North 36 1 22'30" East a distance of 671.15 feet to the beginning of a tangent curve concave to the South having a radius of 30.00 feet and a central angle of 105 °18'35'; THENCE continuing along said block line and the arc of said curve to the right a distance of 55.14 feet to a point of tangency on the Northeast line of said Block 5; THENCE along said Northeast line South 38 °18'55" East a distance of 22.89 feet to a point on a line 60.00 feet Southeast of and parallel with the Northwest line of said Block 5; THENCE along said parallel line South 36 °22'30" West a distance of 694.53 feet; THENCE continuing along said parallel line South 37'19'02" West a distance of 526.01 feet; THENCE South 35 East a distance of 716.33 feet to a point on the South line of said Block 5; THENCE along said South line South 83 0 46'13" West a distance of 488.84 feet to the POINT OF BEGINNING. Regular Council Meeting - July 19, 2011 - Page 139 of 190 Exhibit B SCHOOL SITE: All that portion of Block 5 of Saguaro Springs, Blocks 1 thru 10 and A thru D and Lots 1 thru 9 and A and B, recorded in Book 58 of Maps and Plats at Page 23 in the office of the County Recorder, Pima County, Arizona, more particularly described as follows: COMMENCING at the Southwest corner of said Block 5; THENCE along the South line of said Block 5 North 83 °46'13" East a distance of 488.84 feet to the POINT OF BEGINNING; THENCE North 35 0 13'54" West a distance of 716.33 feet to a point on a line 60.00 feet Southeast of and parallel with the Northwest line of said Block 5; THENCE along said parallel line North 37 °19'02" East a distance of 402.39 feet; THENCE South 47 °17'08" East a distance of 852.35 feet to the East line of said Block 5 being a point on a curve having a radius of 2305.00 feet and to which a radial line bears North 88 °23'22" West; THENCE along said East line of Block 5 and the arc of said curve to the left through a central angle of 06° 15'59" a distance of 252.09 feet to a point of reverse curve, having a radius of 25.00 feet and a central angle of 88 °25'34'; THENCE continuing along the East line of said Block 5 and arc of said curve a distance of 3 8.5 8 feet to a point of tangency on the South line of said Block 5; THENCE along said South line South 83 °46'13" West a distance of 444.07 feet to the POINT OF BEGINNING. PARCEL 2: All that portion of Section 13, Township 12 South, Range 11 East, Gila and Salt River Meridian, Pima County, Arizona, more particularly described as follows: COMMENCING at a 1 1/2 inch lead capped pipe properly marked and monumenting the Southeast corner of said Section 13; THENCE along the East line of said Section 13, North 00 °08'05" West, a distance of 75.00 feet to the POINT OF BEGINNING; THENCE along a line 75 feet North of and parallel to the South line of said Section 13, South 89 °57'50" West, a distance of 1142.34 feet; THENCE North 38 0 23'46" East, a distance of 1833.81 feet, to the East line of Section 13 to which a 2" lead capped pipe properly marked and monumenting the West quarter corner of said Section 18 bears North 00 °08'05" West, a distance of 1129.31 feet; THENCE along said East line of Section 13 South 00 0 08 1 05" East, a distance of 1436.51 feet to the POINT OF BEGINNING. Regular Council Meeting - July 19, 2011 - Page 140 of 190 Exhibit C TOWN OF MARANA, ARIZONA LAND DEVELOPMENT CODE 05.10.12 R -6 Residential A. Purpose. The R -6 single - family residential zone is primarily intended as a district for single - family homes, with not more than one dwelling and customary accessory building upon an individual lot, with a variety of housing sizes and contain a quality design. Except as specifically provided elsewhere in the Land Development Code, any and every building and premises or land in the R -6 zone shall be used for or occupied, and every building shall be erected, constructed, established, altered, enlarged, maintained, moved into or within the R -6 zone, exclusively and only in accordance with the regulations set forth in this Section. B. Permitted Uses. The following shall be permitted in the R -6 single - family residential zone, subject to the Development Standards contained in this section. 1. One single - family residential detached home of a permanent character placed in a permanent location; 2. Churches, synagogues, and other places of worship; 3. Public parks and playgrounds; 4. Public schools; and, 5. Uses similar to those listed above in this section, as determined by the Planning Administrator. C. Accessory Uses. Residential Accessory Uses -- The following accessory buildings and uses may be located on the same lot with a permitted dwelling, provided that any permanent building or structure shall be harmonious with the architectural style of the main building and further provided that all residential accessory uses are compatible with the residential character of the neighborhood: 1. Detached accessory structures, such as tool sheds, patios and cabanas, non- commercial hobby shops, children's playhouses, etc.; 2. Swimming pools, spas, and related structures; 3. Garage, carport or enclosed storage; 4. Sports courts, unlighted; 5. Fences and walls; 6. Home occupations, with an approved Home Occupation Permit; 7. Community recreation uses, including sports courts, swimming pools, spas, recreation buildings, patio shelters and other community facilities common to a homeowner's association, for a specific subdivision; 8. Community identification, entry monuments, community design elements, and other enhancements common to a homeowner's association, and designed for a specific subdivision; and, 9. Model homes, within an approved subdivision. Regular Council Meeting - July 19, 2011 - Page 141 of 190 Title 5 - Zoning Page 57 of 126 Revised: 12/14/2010 Ord. 2010.18 TOWN OF MARANA, ARIZONA LAND DEVELOPMENT CODE D. Conditional Uses. The following may be permitted subject to Conditional Use Permits provided for in Section 10.10 of the Land Development Code. 1. Day care center; 2. Private schools and other ancillary uses in connection with churches, synagogues, and other places of worship; and, 3. Group homes. E. Temporary Uses. The following may be permitted for a specified time period, subject to Section 09.01; Temporary sales trailer, within an approved subdivision; F. Prohibited Uses. Uses prohibited in the R -6 district are as follows: 1. Commercial uses, except those specifically permitted; and, 2. Industrial uses. G. Property development standards — Generally. The property development standards set forth in this section shall apply to all land, structures and buildings in the R -6 zone. i. Lot area. The minimum lot size shall be six thousand (6,000) square feet. j. Lot dimensions. a. Width. Lots shall have a minimum width of fifty -five (55) feet. b. Depth. Lots shall have a minimum depth of eighty (80) feet. 3 Minimum Front, Side and Rear Yards (Setbacks) a. The required front yard (setback) shall be a minimum of sixteen (16) feet, except where garages open or face directly onto an abutting street, in which case the garage setback shall be a minimum of twenty (20) feet. A maximum of thirty -five percent (35 %) of the lots may have a reduced setback to the sixteen feet, with the balance of the setbacks being twenty feet or greater. b. The required side yard (setback) shall be a minimum of five (5) feet, with a street side yard (setback) having a minimum of ten (10) feet. C. The required rear yard (setback) shall be a minimum of twenty (20) feet. Where the front yard (setback) is increased above the twenty (20) feet, then the rear yard (setback) may be reduced one (1) foot for each foot of increase, but shall not be reduced to below fifteen (15) feet. Where the front yard (setback) is decreased below the minimum twenty (20) feet, the rear yard (setback) shall be increased one (1) foot for each foot of decrease, but shall not be required to be over twenty -five (25) feet. Regular Council Meeting - July 19, 2011 - Page 142 of 1 de 5 - Zoning 4age 58 of 126 Revised: 12/14/2010 Ord. 2010.18 TOWN OF MARANA, ARIZONA LAND DEVELOPMENT CODE 4. Building Separation (Distance Between Structures /Buildings) a. The minimum distance between principal (main) buildings shall be ten (10) feet. b. The minimum distance between a principal (main) building and an accessory building or two accessory buildings shall be five (5) feet. C. Attached Patio Structures: A minimum setback of five (5) feet shall be maintained from the rear and side property lines for a patio structure that is open and unenclosed on three (3) sides, as measured to the structure. 5. Building Heights. a. Buildings and structures erected in this zone shall have a height not greater than two- stories or twenty -five (25) feet, except as otherwise permitted. b. Building heights may be permitted to increase a maximum of twenty percent (20 %) to provide a maximum building height of thirty (30) feet subject to the requirements found in Section 8.05 and approval of the Town Council. 6. Lot Coverage. The maximum allowable lot coverage by buildings and structures shall not exceed fifty percent (50 %) of the total lot area. 7. Underground Utilities. All on -site utilities shall be placed underground on the site. Regular Council Meeting - July 19, 2011 - Page 143 of 190 Title 5 - Zoning Page 59 of 126 Revised: 12/14/2010 Ord. 2010.18 Exhibit D TOWN OF MARANA, ARIZONA. LAND DEVELOPMENT CODE 05.10.05 R -36 Residential A. Purpose. The R -36 single - family residential zone is primarily intended as a district for single - family homes, with not more than one dwelling and customary accessory building upon an individual lot, with a variety of housing sizes and contain a quality design. Except as specifically provided elsewhere in the Land Development Code, any and every building and premises or land in the R -36 zone shall be used for or occupied, and every building shall be erected, constructed, established, altered, enlarged, maintained, moved into or within the R -36 zone, exclusively and only in accordance with the regulations set forth in this Section. B. Permitted Uses. The following shall be permitted in the R -36 single - family residential zone, subject to the Development Standards contained in this section. 1. One single - family residential detached home of a permanent character placed in a permanent location; 2. Churches, synagogues, and other places of worship; 3. Public parks and playgrounds; 4. Public schools; and, 5. Uses similar to those listed above in this section, as determined by the Planning Administrator. C. Accessory Uses. Accessory Uses -- The following accessory buildings and uses may be located on the same lot with a permitted dwelling, provided that any permanent building or structure shall be harmonious with the architectural style of the main building and further provided that all residential accessory uses are compatible with the residential character of the neighborhood: 1. Detached accessory structures, such as tool sheds, patios and cabanas, non- commercial hobby shops, guest house, children's playhouses, etc.; 2. Swimming pools, spas, and related structures; 3. Garage, carport or enclosed storage; 4. Sports courts, unlighted; 5. Fences and walls; 6. Home occupations, with an approved Home Occupation Permit; 7. Community recreation uses, including sports courts, swimming pools, spas, recreation buildings, patio shelters and other community facilities common to a homeowner's association, for a specific subdivision; 8. Community identification, entry monuments, community design elements, and other enhancements common to a homeowner's association, and designed for a specific subdivision; 9. Model homes, within an approved subdivision; Regular Council Meeting - July 19, 2011 - Page 144 of 190 Tide 5 - Zoning Page 29 of 126 Revised: 12 /14/2010 Ord. 2010.18 TOWN OF MARANA, ARIZONA LAND DEVELOPMENT CODE 10. Keeping of large and small livestock on parcels one acre or greater; 11. Stables, private; and, 12. Riding arena, rodeo grounds (private, unlighted). D. Conditional Uses. The following may be permitted subject to Conditional Use Permits provided for in Section 10.10 of the Land Development Code. 1. Day care center; 2. Private schools and other ancillary uses in connection with churches, synagogues, and other places of worship; 3. Group homes; 4. Residential facilities for non - permanent occupancy including only bed and breakfast establishments; 5. Aviaries; 6. Riding arena, rodeo grounds (private, lighted); and 7. Keeping of rodents and fowl. E. Temporary Uses. The following may be permitted for a specified time period, subject to Section 09.01; Temporary sales trailer, within an approved subdivision; F. Prohibited Uses. Uses prohibited in the R -36 district are as follows: 1. All commercial and business uses, except those specifically permitted; and, 2. Industrial uses. G. Property development standards — Generally. The property development standards set forth in this section shall apply to all land, structures and buildings in the R -36 zone. 1. Lot area. The minimum lot size shall be thirty-six thousand (36,000) square feet. 2. Lot dimensions. a. Width. Lots shall have a minimum width of one hundred (100) feet. b. Depth. Lots shall have a minimum depth of one hundred (100) feet. 3 Minimum Front, Side and Rear Yards (Setbacks) a. The required front yard (setback) shall be a minimum of thirty (30) feet. b. The required side yard (setback) shall be a minimum of fifteen (15) feet, with a street side yard (setback) having a minimum of twenty (20) feet. C. The required rear yard (setback) shall be a minimum of forty (40) feet. Regular Council Meeting - July 19, 2011 - Page 145 of 1 de 5 - Zoning 4age 30 of 126 Revised: 12/14/2010 Ord. 2010.18 TOWN OF MARANA, ARIZONA LAND DEVELOPMENT CODE 4. Building Separation (Distance Between Structures /Buildings) a. The minimum distance between principal (main) buildings shall be twenty (20) feet. b. The minimum distance between a principal (main) building and an accessory building or two accessory buildings shall be ten (10) feet. 5. Building Heights. a. Buildings and structures erected in this zone shall have a height not greater than two- stories or twenty -five (25) feet, except as otherwise permitted. b. Building heights may be permitted to increase a maximum of twenty percent (20 %) to provide a maximum building height of thirty (30) feet subject to the review and approval of the Town Council, subject to the process and requirements found in Section 8.05. 6. Building Mass. Any structure over two- stories must meet reduced massing requirements for the floors above the first level. The Gross Floor Area (GFA) of each floor above the first floor must not exceed eighty percent (80 %) of the GFA of the previous floor. 7. Lot Coverage. The maximum allowable lot coverage by buildings and structures shall not exceed forty percent (40 %) of the total lot area. 8. Underground Utilities. All on -site utilities shall be placed underground on the site. Regular Council Meeting - July 19, 2011 - Page 146 of 190 Title 5 - Zoning Page 31 of 126 Revised: 12/14/2010 Ord. 2010.18 Exhibit E TOWN OF MARANA, ARIZONA LAND DEVELOPMENT CODE by prior density of land use in accordance with the provisions for Significant Land Use Change contained in Section 05.03 of this Code and by setback requirements defined in this and other titles of this Code or as may be determined by other applicable federal, state and local regulations. C. Setbacks. 1. The required front yard (setback) shall be a minimum of 20 feet. 2. The required side yard (setback) shall be a minimum of five feet, with a street side yard (setback) having a minimum of ten feet. 3. The required rear yard (setback) shall be a minimum of 20 feet. D. Building Heights. Buildings and structures erected in this zone shall have a height not greater than 30 feet. 05.02.02 Zone B — Medium Lot Zone A. Permitted Uses. Within Zone B, any residential, commercial, industrial, or quasi - public land use is permitted so long as each separate land use is conducted on a lot larger than 2.5 acres but no larger than 25 acres and is consistent with the Significant Land Use Change Procedure described in Section 05.03 of this Code. This is not to be construed, however, to permit any land use that may be expressly prohibited within the Town of Marana by other ordinances of the Town of Marana, by other provisions of this code, or by state or federal law. B. Density Requirements. There shall be no maximum density of land use per se in this Zone, except as may be dictated by prior density of land use in accordance with the Significant Land Use Change Procedure described in Section 05.03 of this Code and by setback requirements defined elsewhere in this Code. C. Setbacks. The setback requirements for Zone B shall be the same as for Zone A. 05.02.03 Zone C — Large Lot Zone A. Permitted Uses. Within Zone C, any residential, commercial, industrial, or quasi - public land use shall be permitted, so long as each separate activity is conducted on a lot no smaller than 25 acres and is otherwise consistent with the Significant Land Use Change procedures as described in Section 05.03 of this Code. This is not to be construed, however, to permit any land use that may be expressly prohibited within the Town of Marana by other sections of this Code other ordinances of the Town of Marana, or state or federal law. B. Density Requirements. The maximum density allowed shall be one dwelling unit or one commercial, industrial, or quasi- public establishment per 25 acres. C. Setbacks. No building or structure, except a fence or wall that is not part of a building and not over six feet in height shall be constructed closer than ten feet to any side property line or closer than 40 feet plus one foot for each foot of building height in excess of ten feet above ground level to any front or rear property line. Where a lot is situated on the corner of two dedicated streets, each of the property lines along the right -of -way line of a dedicated street shall be considered to be a front property line, and each other property line shall be considered to be a side property line in determining allowable setbacks. Regular Council Meeting - July 19, 2011 - Page 147 of 1 tle 5 - Zoning age 2 of 126 Revised: 12/14/2010 Ord. 2010.18 Exhibit F Land Use Concept Plan 1 A W40R S suc NOR MAC v 18 REC S W"OR I8 SAC /10R 22AC 1?AC SCH , 2A tUAC MHDR 15AC' 28 !�R 40AC Legend: THE Specific Plan Boundary 0 1500 Feet PLANNING CENTER - — --- - -- Sa Sag uaro Sp rings Bounda "' °i1 " " �"' 9 Boundar rvrscN a asm, sszotazss+ac LDR - Low Density Residential �: = =•- w >a ,,� MDR - Medium Density Residential MHDR - Medium High Density Residential SCH - School HDR - High Density Residential REC - Recreation Age - Restricted Area OS - Open Space! Drainage Saguaro Springs III -7 Regular Co et, 00 8 &10IA11 - Page 148 of 190 Development Regulations F. Development Standards Land use designations have been assigned to each area identified within the Saguaro Springs Specific Plan. Under each designation is a list of permitted, accessory, conditional and prohibited uses, followed by Table 7, which outlines the corresponding residential development standards according to designation. Pages IV -14 through IV -17 contain a series of tables (Tables 8A & 88) that illustrate the differences between Saguaro Springs Specific Plan Development Standards and those required by the Town of Marana Land Development Code. 1. Medium Density Residential (Parcel 2b) a. Permitted Uses • Single - Family Residential (Site -Built Detached Homes) • Model Homes • Parks and Open Space • Community and Recreation Facilities • Public Utility Facilities • Religious Institutions b. Accessory Uses • Detached accessory structures, such as storage sheds, workshops and covered patios • Swimming pools, spas and related structures • Home occupations c. Conditional Uses • Childcare Facilities • Educational Facilities • Group Homes d. Temporary Uses ■ Temporary Sales Trailer (in approved subdivisions) e. Prohibited Uses • Commercial Uses • Industrial Uses f. Parking Standards ■ At minimum, two off - street parking spaces within an enclosed garage shall be provided per unit, plus one additional space for every four units. (Parking spaces provided within the pocket parks may be used to satisfy the parking requirement for additional spaces.) Saguaro S rings IV -9 Regular Co et����d h9I11 - Page 149 of 190 Development Regulations 2. Medium High Density Residential (Parcels la, lb and 2a) a. Permitted Uses • Single - Family Residential Site -Built Detached Homes • Residential Site -Built Attached Homes, including Duplex, Triplex and Four -Plex Products • Model Homes • Parks and Open Space • Community and Recreation Facilities • Public Utility Facilities • Religious Institutions b. Accessory Uses ■ Accessory uses listed under Medium Density Residential shall apply c. Conditional Uses ■ Conditional uses listed under Medium Density Residential shall apply d. Temporary Uses ■ Temporary uses listed under Medium Density Residential shall apply e. Prohibited Uses ■ Prohibited uses listed under Medium Density Residential shall apply f. Minimum Private Open Space ■ Minimum private open space to be provided per home is 50 square feet, in the form of one or more of the following: Patios Balconies Porches Decks Others deemed similar by the Planning Director x Community Center sites identified in Parcels 1a and 2a shall conform to the following standards: ■ Minimum perimeter & street setback: 20 feet ■ Maximum building height: 35 feet (Chimneys, skylights or ornamental elements, such as towers, domes or cupolas, may extend above the building to a maximum height of 40 feet.) • Maximum site coverage: 75 percent • Minimum building separation: per building code current at time of building permit application Saguaro Springs IV -10 Regular Co et,sp &lplAl 1 - Page 150 of 190 Development Regulations g. Parking Standards ■ Two parking spaces within an enclosed garage shall be provided per unit, plus one additional space for every four units. This requirement may be reduced to one parking space within an enclosed garage, plus one space for every four units, upon approval by the Planning Director during subdivision plat review. (Parking spaces provided within the pocket parks may be used to satisfy the parking requirement for additional spaces.) 3. High Density Residential (Parcels 5 and 6) a. Permitted Uses • Residential Site -Built Attached Homes, including Duplex, Triplex and Four -Plex Products • Single - Family Residential Site -Built Detached Homes (per MHDR Standards) • Model Homes • Parks and Open Space • Community and Recreation Facilities • Public Utility Facilities • Religious Institutions b. Accessory Uses ■ Accessory uses listed under Medium Density Residential shall apply c. Conditional Uses ■ Conditional uses listed under Medium Density Residential shall apply d. Temporary Uses ■ Temporary uses listed under Medium Density Residential shall apply e. Prohibited Uses ■ Prohibited uses listed under Medium Density Residential shall apply f. Minimum Private Open Space ■ Minimum private open space to be provided per home is 50 square feet, in the form of one or more of the following: Patios Balconies • Porches • Decks • Others deemed similar by the Planning Director Saguaro S IV -11 Regular Co et p9pa8 ipIA11 - Page 151 of 190 Development Regulations g. Parking Standards ■ Two parking spaces within an enclosed garage shall be provided per unit, plus one additional space for every four units. This requirement may be reduced to one parking space within an enclosed garage, plus one space for every four units, upon approval by the Planning Director during subdivision plat review. (Parking spaces provided within the pocket parks may be used to satisfy the parking requirement for additional spaces.) 4. Recreation a. Permitted Uses • Parks • Community and Recreation Buildings • Play Fields • Playground Equipment • Drainage Facilities • Trails • Shade Structures b. Prohibited Uses • Residential Uses • Commercial Uses • Industrial Uses c. Parking Standards • The District Park will require a minimum of 300 parking spaces. • All pocket parks over ' / 2 acre in size will require a minimum of 3 spaces per ' / 2 acre. Parking spaces within the pocket parks may be used to satisfy residential off - street parking requirements. d. General Development Standards Per Town of Marana Standards Saguaro Springs IV -12 Regular Co eui9p 1pIM,, - Page 152 of 190 N w C + _ U) gal c ;" c ° o o o ca LO ° � o o c *� N ° `° ° ui c G) �� j U N O M ca c O p r N U O 'F- d O O +' c0 a) N N a3 M M T E C .. CL fa U c rn O z✓ U N E N N 0 Gj a c N v co co 2 CL N a d c N O O O U O U o`er ° a Z' °� 2 0 o o E:3 rna) � o ° r E rn a c C� �L Cl) aci aci � m E o v 3 o a > c m Y 3 as m c 4 c c - 0 :3 ,. M 0 o C7 c � a - m E N o o o ° E O E a' a c°> ' E o w ( 0 O o p m c E c E w �\ o> o v m MA ca co C m o ca w E rn0 CD U) O F . d CO 5 C l) w y Q Q d C _- LO p �i ' "p 0-0 = fa N a3 j i o o E co m `� �> D /' o E c 0 r .0 oco 0 cc Q 404 T as ._ a o o ca 0) ° o o o c G7 4" w, { , [3 A a+ o o E o _ Q ca c 0 li �\ co U ° U 32 CL N n 0 "� •- / 0' c ' As E a ° o ° 0 CO ( D v o ai m� 0 0 fltt +� O (0.0 N w Q is • ca as c o c 0 co \� aF o O c N C c m o °� " ° a o �0 E c � a) ° cn w >, N m w U) o ++\ x O O r5C a) 0 V 'B o_ E NCO p� LO co may 1 O O E o w f6 N Oi 7 C- — N N a c .p a w a cc co o p LO o `" co c> "� 3a � £ U') v �' Q " U > U) m a o L a , lL w " 33 N 0 E ca ° M o y ° Q c c N o Y c m fn-- cu d D O a o Ym0 °E cn Yoa U) 'C OT Em o 00fC — a ash 2� c 3 ca— o� Na a) a) POK as ,: w 05 a)m Qo Q �c t Q Q N w w M Q v co N m t 'p _ a w C) Z O O J F H W W LLJ O ?� Z N J W t `-' ` � i \ ; N LLI ° O En N F— > UQ w LLJ `LJ p O N L) V) 'N Q Lj W Z F- Q � a I UW Z �• z d Z O 3 ° Q N d N Q O 00 m cn O ZN O LLJ ii �' w J ° W g _ QF-N 0 ° ■� p s o Z F °_ 0- W `n N < w o0 Q ll > O m L L �2 w w° O J Q ti U H O Q Z �) W < J W C-4 0 F- N JW ZZZ Cy �N ti w O> (O C l J OD C-j I O Z U N d d w Z ° ° aO in M w c� N Q � m W � H U ^J 0 ZW U W O ~ — -- QON U N Z O w� �j m H 2 U N d U Lu J W U N of W \ $ \ b o / o z E �------ - - - -�- } \ / / 0 / ® / ± b « §2\ / ƒ � ¥ P� « 2 0 § / q o- j to e \/ � \ / Z Q C14 S z _ \ ) § / 7 \ Ld » CN � \ /§ § &S \ » -j § y * & e \� �b (,17) /2» x m �/ _0 Kƒ 2 §z / f �/ /\ �� 4 � F— / c §\ /2 * >_�4 ® ---- - - - - -- i� 7t / \ ■ _ � \ \ . 2 /j $ 2 % c � #2 c c �§ § / /§ E 2$ $% o I u 4 `' ui LO o �» m E C - n c co s N " Cc s L a ��� i l4 ca � � A X Olson Development Agreement for the Saguaro Springs MMAM Development Project TOWN N CASE PCM -11021 W OO-' ORE - RD jW MOORE RU q N ERfN FARMStti VYTANC�t T ,qRD cs,Q �Fg W AVRA VALLEY RD b i ll; ,�� VISTA RL'. WTWIN PRD .r--w yyTWlts� 4 d1 W W MAGEE RD 0 W MASStNGALE RD p d � d Z ' N W INA RD z, Request 0 4250 8500 ft. N A request by Marana 670 Holdings, LLC for a recommendation for approval of the Second Amended and Restated Development Agreement for the Saguaro Springs Development Project to the Mayor and Town Council. Data Disclaimer: The Town of Marana provides this map information' As Is' at the request of the user with the undtanding that is not guaranteed to be accurate, correct or complete and conclusions drawn from such information are the responsibility of the user. In no event shall ers The Town of Marana become liable to users of these data, or an other party, for any loss or direct, indirect, special,incidental or consequential damages, including but not limited to time, money or goodwill, arising from the us u5adr .nR ' - Jul 19 2011 - Pa q a 157 of 190 MARANA PLANNING COMMISSION RESOLUTION NO. 2011-01 A RESOLUTION OF THE TOWN OF MARANA PLANNING COMMISSION, MAKING A WRITTEN REPORT AND RECOMMENDATION TO THE MARANA TOWN COUNCIL CONCERNING THE PROPOSED DEVELOPMENT AGREEMENT FOR THE SAGUARO BLOOM (FORMERLY KNOWN AS SAGUARO SPRINGS) DEVELOPMENT PROJECT, MAKING FINDINGS IN CONNECTION WITH THE PLANNING COMMISSION'S DECISION AND RECOMMENDATION, AND AUTHORIZING THE CHAIR TO PRESENT THE PLANNING COMMISSION'S FINDINGS AND RECOMMENDATION TO THE TOWN COUNCIL. A. Report. The Marana Planning Commission hereby reports to the Marana Town Council, as follows: 1. The Development Agreement for the Saguaro Bloom Development Project (sometimes referred to in this resolution as the "Saguaro Bloom DA" or "DA ") was brought for consideration before the Marana Planning Commission at its regular meeting on June 29, 2011. 2. The agenda materials for the June 29, 2011 Marana Planning Commission regular meeting included the following: a. A draft of the proposed Saguaro Bloom DA identified by the number "00025853.DOC / 5" in the footer, including Exhibits A through I. b. A staff report providing a summary of the provisions of the Saguaro Bloom DA and an explanation of the Planning Commission's role in reviewing and making a recommendation concerning the proposed Saguaro Bloom DA. c. A staff - prepared draft of Marana Planning Commission Resolution No. 2011 -01. 3. The Marana Planning Commission held a public hearing on the proposed Saguaro Bloom DA, where representatives of the owner, Marana 670 Holdings, LLC, and members of the public were given an opportunity, but chose not, to provide comments and feedback relating to the proposed Saguaro Bloom DA. B. Findings. Based on the documents provided in the record, the staff report, and the public testimony, the Marana Planning Commission makes the following findings: 1. The proposed Saguaro Bloom DA will promote and facilitate orderly and planned development of the proposed Saguaro Bloom Development Project located west of Silverbell Road, south of Lambert Lane and northerly of Twin Peaks Road. Regular {q1 4 41g r July 19, 2011 - Page 158 of 190 - I - 6/29/20117:23 PM BDV /FC 2, The proposed Saguaro Bloom DA provides the owner 'With certain assurances and protection of rights that will provide the ability to proceed in accordance with existing applicable laws, regulations, and policies including the Marana Land Development Code, Town of Marana Ordinance No - 97.04, Town of Marana Ordinance No. 99x 1 4, and Town of Marana Ordinance 2005.14 (Saguaro Springs Specific Plan). 3. The proposed Saguaro Bloom DA will provide the Town with appropriate, assurances from the owner that development of the Saguaro bloom Devetopment 'Project will comply with all plan approvals, terms, and conditions, and will oompl with all, applicable federal, state, and local laws and regulations. 4. The proposed Saguaro Bloom DA will provide the Town with certain appropriate community b nefrts and fees. 5. The proposed Saguaro Bloom DA is consistent with the Marana General Plan and the Minna Strategic Plana C. Recommendation. Based on the foregoing report and findings, the Marxm- Planning Commission recommends that the proposed Development Agreement for the Saguaro, Bloom. Development.Project be approved as presented. D. Authorization. The Marana Planning Commission hereby, authorizes Norruan. Fogel, the Chair, of the Planning, Commission, to present the Planning Commission's findings and recommendations at one or more Marana Town Counci I meetings regarding this matw. PASSED AND ADOPTED BY THE • PLANNING COMMISSION OF THE TOWN Of, MARANA, AkIzONA, this 29 day of June 201 on a vote of 6 in favor, Q opposed, and 1 absent (one, vacancy). rrraan Fogel, Chair ATIT-ST. AP TO FORM: TA Baler, PAring elretar z Gas dy, e-y T Regulaq§0,4#f4444"q�- July 19, 2011 - Page 159 of 190 -2- WM201 i 7;23 PM ADViTC WHEN RECORDED, RETURN TO: Town Clerk TOWN OF MARANA 11555 North Civic Center Drive Building A3 Marana, Arizona 85653 DEVELOPMENT AGREEMENT FOR THE SAGUARO BLOOM DEVELOPMENT PROJECT Town of Marana, Arizona Marana 670 Holdings, LLC I ReguIg0 gi4.jJ @WinWJuly 19, 2011 - Page 160 of 190 DEVELOPMENT AGREEMENT FOR THE SAGUARO BLOOM DEVELOPMENT PROJECT THIS DEVELOPMENT AGREEMENT (this "Development Agreement ") is made by and between the TowN OF MAP-ANA, an Arizona municipal corporation (the "Town "), MARANA 670 HOLDINGS, LLC, an Arizona limited liability company (the "Owner "), and ( "Grayhawk "). The Town, the Owner, and Grayhawk are sometimes collectively referred to as the "Parties," any one of which is sometimes individually referred to as a "Party." RECITALS A. The Owner is the current owner of the real property within the corporate limits of the Town, as depicted on the map attached hereto as Exhibit A and legally described on Exhibit B (the "Property"), now known by the name "Saguaro Bloom" and formerly known as "Saguaro Springs" (the "Development" or "Project "). B. The Owner is holding the Property for investment purposes and does not have any present intent to develop the Property for its own account, but the Owner and all subsequent owners of the Property shall be bound by all terms and conditions of this Development Agreement:_ C. The Owner has entered into an option agreement with Grayhawk granting Grayhawk an exclusive option to purchase, for the purpose of development and/or resale to builders, all or a portion of the Property, which option agreement is evidenced by that certain Memorandum of Option Agreement recorded in the Pima County Recorder's office at Sequence Number I All entities that develop the Property, including the Owner and. hg&k._ and to the extent the Owner- wk decides to develop the Property, are referred to in this Agreement as the "Developer." D. The Project is the subject of a block subdivision plat titled "Saguaro Springs Blocks 1 thru 10 & A thru D and Lots 1 thru 9 & A and B," recorded in the Pima County Recorder's office at Book 58 of Maps and Plats Page 23, and referred to in this Development Agreement as the "Saguaro Springs Block Plat." E. The Property includes all of the Saguaro Springs Block Plat except the following, which are collectively referred to in this Development Agreement as the "Excluded Property": (i) Block 10 as depicted on the Saguaro Springs Block Plat, and (ii) That part of Block 8 as depicted on the Saguaro Springs Block Plat specifically described as Lots 17 through 45, 87 through 95, and 99 through 130 of Saguaro Springs Block 8A according to the subdivision recorded in the Pima County Recorder's office at Book 62 of Maps and Plats, Page 7. F. The Town and Best Associates Il, LLC previously entered into that certain "Development Agreement" recorded in the Pima County Recorder's office on May 18, 1998 in Docket 10798 at Page 663 (the "Original Development Agreement ") regarding the Property and the Project. The Original Development Agreement was amended by a "First Amendment to Development Agreement" recorded in the Pima County Recorder's office on July 23, 1999 in Docket 11095 at Page 1615 (the "First Amendment to the Original Development Agreement "). The Original Development Agreement, as amended by the First Amendment to the Original Development Agreement, was replaced in its entirety by that certain "Amended and Restated Development I {00025853.DOC / 5¢} SAGUARO SvRpw6 DEVELOPMENT AGREEMENT &7/&20115 :545$ PM Regular Council Meeting - July 19, 2011 - Page 161 of 190 1 Agreement" recorded in the Pima County Recorder's office on April 12, 2004 in Docket 12278 at Page 3092, which was amended pursuant to that certain "First Amendment to Amended and Restated Development Agreement" recorded in the Pima County Recorder's office on December 12, 2005 in Docket 12698 at Page 3669 (collectively the "Prior Development Agreement "). G. The Property is the same as described in Exhibit A -1 to the Prior Development Agreement with the exception of the Excluded Property and the lands that have been dedicated to the public since the execution of and in furtherance of the Prior Development Agreement. H. The Parties desire to restate in its entirety the Prior Development Agreement and intend that this Development Agreement shall replace and supersede the Prior Development Agreement in its entirety with respect to the Property. I. The Parties desire to enter into this Development Agreement to establish, among other things, the types of land uses, locations, densities and intensities of such land uses, and community character of the Property, and to provide for, among other things, the development of a variety of housing and recreation/open space opportunities, as such development may be modified by subsequent land use plans. J. The Parties desire that the Property be developed in accordance with the following (the "Development Criteria "): (i) The Marana Land Development Code (the "MDC ") (ii) The zoning designations, stipulations, conditions and restrictions for the Property as detailed in the following (collectively the "Zoning Ordinances "): (a) Town Ordinance No. 97.04, passed and adopted February 18, 1997 (b) Town Ordinance No. 99.14, passed and adopted May 18, 1999 and recorded in the Pima County Recorder's office on June 11, 1999 in Docket 11066 at Page 501 (c) Town Ordinance No. 2005.14, passed and adopted November 15, 2005 and recorded in the Pima County Recorder's office on November 18, 2005 in Docket 12683 at Page 4068 K. The Parties acknowledge that this Development Agreement is intended to be consistent with the Development Criteria, and operates for the benefit of the Town, the Owner, the Developer, and the general public. L. The Parties acknowledge and agree that this Development Agreement is a "development agreement" within the meaning of, and entered into pursuant to, the terms of A.R.S. § 9- 500.05, in order to facilitate the development of the Property by providing for, among other things, conditions, terms, restrictions, and requirements for the construction and installation of public infrastructure, as more particularly described in the Infrastructure Plan (as defined in Section 2.1 below); the phasing over time of construction or development on the Property; and other matters related to the development of the Property. M. The Parties acknowledge that the development of the Property pursuant to this Development Agreement is consistent with the portions of the Town's General Plan applicable to the Property and will result in planning and economic benefits to the Town and its residents, by, among other things, (i) requiring development of the Property consistent with the Development Criteria, (ii) increasing revenues to the Town based on improvements to be I {00025853.DOC / -561 SAGUARO .S pR1NGs DEVELOPMENT AGREEMENT 6/7/&201152:5451 52:545$ PM Regular Council Meeting - July 19, 2011 - Page 162 of 190 2 constructed within the Property, and (iii) creating jobs through work to be performed in development of the Property. N. The Town acknowledges that the Owner and the Developer, in connection with the I development of the Property, are relying upon the rights conferred upon the.. Owner.. and the Developer pursuant to this Development Agreement and the Prior Development Agreement, including without limitation the vested rights created by this Development Agreement. O. The Property is subject to a community facilities district (the "Saguaro Springs CFD ") formed under the authority of Arizona Revised Statutes Title 48 Article 6 (A.R.S. §§ 48 -701 through 48 -725) pursuant to: (i) The "Notice of Formation of Saguaro Springs Community Facilities District" recorded in the Pima County Recorder's office on November 28, 2007 in Docket 13190 at Page 1244; (ii) Town Resolution No. 2007 -152 "Ordering and Declaring Formation of Saguaro Springs Community Facilities District; Approving and Authorizing the Execution and Delivery of a District Development, Financing Participation and Intergovernmental Agreement (Saguaro Springs Community Facilities District)" recorded in the Pima County Recorder's office on November 28, 2007 in Docket 13190 at Page 1248; and (iii) The "General Plan for the Proposed Saguaro Springs Community Facilities District" recorded in the Pima County Recorder's office on November 28, 2007 in Docket 13190 at Page 1277. P. The Owner, the Developer, the Town, and the Saguaro Springs CFD anticipate entering into a future "District Development, Financing Participation and Intergovernmental Agreement" governing the Saguaro Springs CFD's financing and acquisition of certain public infrastructure in or benefiting the Project. This future agreement is referred to in this Development Agreement as the "CFD Development Agreement." Q. The Owner's predecessor -in- interest has dedicated to the Town an approximately 29.26 acre park site (the "Park Site ") within the Project, consisting of Saguaro Springs Block Plat Block A (Retention/Detention Basin), encompassing approximately 22.59 acres (the "Basin "), and approximately 6.67 acres of the adjoining Saguaro Springs Block Plat Block 5. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Development Agreement, the Parties hereby agree as follows: Article 1. Development of the Property 1.1. Development in Accordance with the Development Criteria The Property shall be developed in accordance with the Zoning Ordinances, which (in conjunction with the MDC) set forth the basic land uses, densities, and intensities of such land uses as presently authorized for the Property and the development regulations related to it. The Developer may (i) implement and proceed with development of the Property in a manner consistent with the Zoning Ordinances, and (ii) proceed through the legally required development process and request the customary approvals necessary to permit the Developer to implement the Zoning Ordinances. Upon compliance by the Developer with the development review and approval process as set forth in the MDC and other Town ordinances, rules, regulations, and state and federal laws, the Town agrees to approve or issue such permits, plans, specifications, and/or plats of or for the Property I {00025853.DOC / 36} SAGUARO SPR wA BLOGM DEVELOPMENT AGREEMENT &7/&2011-52:545$ PM Regular Council Meeting - July 19, 2011 - Page 163 of 190 3 as may be requested by the Developer and which are consistent with the Zoning Ordinances and the MDC. The Development Criteria constitute a protected development right plan (as defined in A.R.S. § 9 -1201, paragraph 4). 1.2. Development Approvals The Town will cooperate with the Owner and the Developer in good faith with regard to any rezoning requests or other development approvals, so long as the total residential density within the Property does not exceed 2,509 units. 1.3. Zoning Conditions As a condition to the Developer's ability to develop the Project in accordance with the Development Criteria, the Developer shall fulfill all conditions to development in the Zoning Ordinances. The Property includes areas currently zoned R -6 Residential, R -36 Residential, Zone C Large Lot Zone, and Zone F Specific Plan (Saguaro Springs Specific Plan) under the MDC. The MDC zoning regulations applicable to these zones in effect as of the date of this Development Agreement are attached to and incorporated by this reference in this Development Agreement as Exhibit C (Current MDC R -6 Residential zoning regulations), Exhibit D (Current MDC R -36 Residential zoning regulations) Exhibit E (Current Zone C Large Lot Zone zoning regulations), and Exhibit F (Current Zone F Specific Plan (Saguaro Springs Specific Plan) zoning regulations). The Developer shall be permitted to develop the Property consistent with the less restrictive of the MDC zoning regulations for these zones in effect as of the date of this Development Agreement or the zoning regulations for these zones in effect at the time development occurs. 1.4. Amendments to Plans and Development Agreement The Parties agree to cooperate and in good faith pursue any amendments to this Development Agreement that are reasonably necessary to accomplish the intent and purposes of the Zoning Ordinances and to facilitate the development of the Property in light of any changes in development requirements. 1.5. Residential Design The Project shall adhere to the standards set forth in sections 8.06.07, 8.06.08, 8.06.09, and 8.06. 10 of the Town's residential design ordinance, Ordinance No. 2005.18 adopted September 19, 2005, and recorded in the Pima County Recorder's office on September 23, 2005 at Docket 12645, Page 413, with the following exceptions: 1.5.1. A total of 60% of the detached homes in the Project may have two stories. 1.5.2. All of the homes in the Project (single -story and two -story) shall consist of four -sided design as approved by the Planning Director. 1.6. Outside Consultants If the Town is unable to provide sufficient personnel (either in -house staff or outside consultants to the Town) to review plans and other materials ( "Submitted Materials ") within the time desired by the Developer, the Developer may agree in writing to pay the direct costs incurred by the Town to retain such consultants or other experts as the Town may reasonably deem necessary to review the Submitted Materials on behalf of the Town. Such consultants or experts shall be mutually selected by the Town and the Developer from a list of Town- approved on -call consultants. The Developer acknowledges that the consultant's or expert's recommendations will be subject to review and approval by Town Staff and that the Town shall not be bound by any of the consultant's or expert's recommendations unless adopted by the Town official having final approval rights on each of the Submitted Materials. The Developer shall indemnify and hold the Town harmless from any claims relating to any costs for consultants or experts that the Developer agrees in writing to pay. I I (00025853.DOC / 56) .SAGUARO cSSPR4NGS DEVELOPMENT AGREEMENT b/7 /$(2011 52 -5451 PM Regular Council Meeting - July 19, 2011 - Page 164 of 190 4 1.7. School Site The Owner's predecessor -in- interest dedicated a school site to the Marana Unified School District ( "MUSD ") within the exterior boundary of the Project for the location of an elementary school. To the best of the Town's knowledge, the dedication of the school site fulfills the Owner's and the Developer's obligations to MUSD regarding schools. The dedication of the school site fulfills the Owner's and the Developer's obligations to the Town regarding schools and the Town agrees that no additional payment or other compensation to MUSD is necessary to comply with the Town's requirements. 1.8. Acceptance of Improvements The Town Engineer shall schedule a Town Council agenda item for Town acceptance of public infrastructure improvements (or, if the Town's procedures are revised such that the Town's acceptance of public infrastructure improvements no longer require Town Council approval, the Town shall accept public infrastructure improvements) within 30 days after the Developer submits to the Town Engineer a completed public infrastructure close -out package conforming to the requirements set forth in MDC section 06.06 (or its successor provision). 1.9. Developer's Warranty The Developer shall warrant the materials and workmanship of all public infrastructure improvements for a period of thirteen months after the date of the Town Engineer's receipt of a complete close -out package (see Section 1.8 above). Article 2. Infrastructure Improvements 2.1. Infrastructure Plan The approved Infrastructure Plan for the Property consists of the infrastructure improvements described in this Article. The Developer may implement and phase the infrastructure improvements to the Property in conformance with the Infrastructure Plan, the phasing described in Article 3 below, and all other requirements of this Development Agreement. 2.2. Construction of Infrastructure Improvements As a condition to the Developer's development of the Project, the Developer, at its sole cost, shall cause the items of public infrastructure described in the Infrastructure Plan (the "Infrastructure Improvements ") to be constructed as approved by the Town with respect to development of all or any portion of the Property. The Infrastructure Improvements shall be constructed in accordance with the requirements for construction of infrastructure improvements similar to the proposed construction. I 2.3. Infrastructure Plan Amendment The To nand the D acknowledge that amendments to the Infrastructure Plan may be necessary from time to time to reflect changes in market conditions, development financing and/or to meet the new requirements of one or more of the potential users or builders of any part of the Property, or as more detailed information becomes available. If and when the Parties find that changes or adjustments are necessary or I appropriate, the P i_es agree to cooperate in good faith to effectuate such changes or adjustments through amendments to the Infrastructure Plan. Minor amendments shall require the approval of the Town Engineer and the Town Manager, without prior notice or hearing to the public. Major amendments shall require the approval of the Town Council. 2.4. Transportation Improvements The Developer shall have the following responsibilities with respect to the transportation improvements described below (the "Transportation Improvements "), to be phased with the Subdivision Improvements and Infrastructure Improvements pursuant to Article 3 below: I {00025853.DOC / 5t} SAGUARO SPRINGs DEVELOPMENT AGREEMENT 6/7/&2011 52:5$5$ PM Regular Council Meeting - July 19, 2011 - Page 165 of 190 5 2.4. 1. Twin Peaks Road Design In consultation with and under direction of Town Staff, the Developer shall prepare design plans and associated construction documents necessary for the reconstruction of Twin Peaks Road to its full four -lane arterial road cross - section ( "Twin Peaks Design "), as determined by the Town in consultation with Pima County. The currently anticipated four -lane arterial road cross - section is shown on Exhibit G . The Twin Peaks Design shall run from a point at the west boundary of the Project to the eastern intersection of Twin Peaks Road and Silverbell Road (the intersection where Safeway is currently located). The Town and the Developer will confer as to the most appropriate location within the design scope to transition the design from a four -lane designation to a two -lane designation, west of the intersection of Twin Peaks Road and Saguaro Highlands Drive. Within the Twin Peaks Design area, the design of turn lanes and storage lengths on Twin Peaks Road and intersecting roadways shall be based on recommendations made in the Town - approved December 2004 Traffic Impact Analysis prepared for the Project, or any subsequent versions that may be provided by the Developer and accepted by the Town. 2.4.2. Twin Peaks Road Construction The Developer shall design and construct Twin Peaks Road to one -half of its four -lane arterial road cross - section along the entire frontage of the Project from its west boundary to its east boundary. 2.4.2.1. The scope of construction shall include the installation of westbound right -turn lanes and eastbound left -turn lanes at Twin Peaks Road's intersection with Saguaro Peaks Boulevard and Saguaro Highlands Drive. 2.4.2.2. The Developer and the Town may mutually elect to construct interim improvements to provide a more functional condition prior to the completion of permanent Twin Peaks Road construction. 2.4.2.3. The Developer shall not be responsible for costs associated with elements of construction required by the Town, Pima County, or any other governmental authority to protect or accommodate native species. 2.4.3. Twin Peaks Road Traffic Signal If warranted based on a T— vvn. ds-- Laval -YH Developer shall design, construct and install (or fund the cost of) a three - legged traffic signal at the intersection of Twin Peaks Road and Saguaro Peaks Boulevard. time -frame when it builds the Twin Peaks Road improvements (see_Section_ 4.4_helowl 2.4.4. Lambert Lane The Developer shall design and construct Lambert Lane from Airline Road to a point 4,900 feet east of Airline Road to the Town's standards for a two -lane rural collector, as shown on the cross - section set forth in Exhibit H . including: I {00025853.DOC / 3 -6} SAGUARO SPRFNGs QQM DEVELOPMENT AGREEMENT &7/&2011 32:545$ PM Regular Council Meeting - July 19, 2011 - Page 166 of 190 6 2.4.4. 1. Realignment of the curved segment of Lambert Lane located between 4,130 feet and 4,900 feet east of Airline Road; 2.4.4.2. Addition of westbound left -turn lanes at all of the Project's streets that intersect Lambert Lane; and 2.4.4.3. An eastbound right -turn lane at the intersection of Lambert Lane and Saguaro Peaks Boulevard. 2.4.5. Airline Road The Developer shall design and construct Airline Road from Avra Valley Road to Lambert Lane to the Town's standards for a two -lane rural collector, as shown on the cross - section set forth in Exhibit H , including a southbound left -turn lane at the Lambert Lane intersection. 2.4.6. Payment in Lieu The Developer and the Town may mutually choose to enter into a payment -in -lieu agreement for any or all of the Transportation Improvements. 2.5. Public Recreational Amenities The Developer shall construct approximately 42 acres of "Public Recreational Amenities" within the area encompassed by the Saguaro Springs Block Plat, consisting of the Park (addressed in Section 2.6 below) and the Trails (addressed in Section 2.8 below). 2.6. The Park The Developer shall design and construct public park improvements and amenities as depicted on Exhibit I attached to this Development Agreement (the "Park ") on the Park Site consistent with the less restrictive of the Town's Parks and Recreation Department Standard Specifications and Details for Park Development in effect as of the date of this Development Agreement or the Town's Parks and Recreation Department Standard Specifications and Details for Park Development in effect at the time development occurs, as follows: I 2.6.1. The will use their best efforts to enter into a "Park Master Planning Process" to address scope, amenities, budgeting, etc., of the Park, consistent with the following general principles: 2.6.1.1. The Developer shall not be required to contribute more than $2,500,000 toward the design and construction of the Park. This amount shall not include the value of the land dedicated for the Park. 2.6.1.2. Saguaro Springs Block Plat Block A (Retention/Detention Basin) (the "Basin ") will provide approximately 20 acres of usable space for ball field development and other recreational amenities. 2.6.1.3. The athletic fields within the Park site shall be lighted in a manner consistent with the Town of Marana Lighting Ordinance. 2.6.1.4. The Basin bottom shall have a width of approximately 340 feet with slopes constructed at a 4 to 1 ratio (horizontal to vertical). 2.6.1.5. The Basin floor shall have a minimum slope of one -half of one percent (0.005 %) and both the floor and slopes shall have a turf surface. 2.6.1.6. The approximately 6.67 acres of the adjoining Saguaro Springs Block Plat Block 5 may include parking, a ramada, restroom facilities, etc. I {00025853.DOC/5¢} SAGUARO SPRINGs DEVELOPMENT AGREEMENT 6/7/2011 52:54a PM Regular Council Meeting - July 19, 2011 - Page 167 of 190 7 2.6.1.7. The Park Master Plan shall integrate the MUSD School Site and the portion of the Park located on Saguaro Springs Block Plat Block 5. 2.6.1.8. The Park Master Plan shall integrate with development for future Park phases, if any. 2.6.1.9. Unless otherwise agreed to by the Town and the Developer, the Park shall be accessed directly from Saguaro Highlands Drive, with no direct access allowed from residential lots by access gates or other means. 2.6.1.10. The size, dimensions, uses and other aspects of the Park may be modified by written memorandum signed by the Developer and the Town Manager. 2.6.2. Upon the conclusion of the Park Master Planning Process, the Developer shall submit landscape plans and improvements plans for the Park to the Town's Parks and Recreation Director for review and approval. 2.6.3. Upon completion of the Park (or Separately - Useable Portion) in accordance with the approved landscape plans and improvement plans, the Developer shall transfer ownership of all Park improvements (or the Separately- Useable Portion) to the Town by bill of sale or other documentation reasonably requested by the Town. 2.6.4. Sections 1.8 and 1.9 above shall apply with respect to the acceptance and warranty of the Park (or any Separately - Useable Portion). 2.6.5. The term "Separately- Useable Portion" shall refer to a phase or group of Park improvements which the Town Parks and Recreation Director or Town Manager agrees in writing are separately useable by and useful to the public without the completion of the remaining Park improvements. 2.6.6. Each homebuilder shall disclose in writing in its sales documents to residential home buyers within the Project that the athletic fields within the Park will be lighted. The disclosure may be included in the subdivision public report provided to home buyers as required by the Arizona Department of Real Estate. This notice obligation does not apply to re -sales by residential homeowners within the Project. 2.6.7. The final subdivision plats for Saguaro Springs Block Plat Blocks 2A, 4, 5 and 6 shall include a general note disclosing that the athletic fields within the Park will be lighted. 2.7. Drainage and Retention Areas The Owner and its predecessors -in- interest have dedicated to the Town and have substantially completed construction of the drainage and retention areas depicted on the Saguaro Springs Block Plat as Block A, Block B, Block C, and Block D, consisting of about 75.75 acres of land (the "Drainage and Retention Areas "). Saguaro Springs Block Plat Block A, encompassing approximately 22.59 acres (the "Basin "), is part of the Park Site. The Drainage and Retention Areas shall provide open space to enhance the appearance of the Project. 2.8. The Trails The Developer shall construct public trails (the "Trails ") within the Drainage and Retention Areas in accordance with the following: 2.8.1. The Developer shall be given credit for 45 square feet of Public Recreational Amenities (see Section 2.5 above) for every linear foot of Trails constructed within the Drainage and Retention Areas. I {00025853.DOC / -56} SAGUARO FIPRINGS DEVELOPMENT AGREEMENT &7/&201152:545$ PM Regular Council Meeting - July 19, 2011 - Page 168 of 190 8 2.8.2. Except as otherwise modified by written memorandum signed by the Developer and the Town Manager, primary Trails constructed within or adjacent to the Drainage and Retention Areas shall be predominantly ten feet wide and shall be paved, and secondary Trails shall be less than ten feet wide and may be "soft trails" such as stabilized decomposed granite or equivalent materials. 2.8.3. All Trails shall incorporate adjoining landscaping but are not required to be fully improved "greenways." 2.8.4. Upon completion of the Trails, the Owner shall transfer ownership of all Trails improvements within the Drainage and Retention Areas to the Town by bill of sale or other documentation reasonably requested by the Town. 2.8.5. The Developer, the Saguaro Springs CFD, or any property owners association designated by the Developer shall be responsible for maintaining the Trails within the Drainage and Retention Areas so long as a valid landscaping license agreement remains in effect between the Town and such entity. 2.9. Median Landscaping As a condition to the Developer's development of the Project, the Developer shall construct and install median landscaping within the Project in accordance with the Town's then applicable standards. Landscaping will be designed for low maintenance, employing native materials installed in a natural manner as opposed to more formal plantings that require a higher level of maintenance. Landscaping installed within rights -of -way adjoining and within the Project will be maintained by a property owners association or similar entity so long as a valid landscaping license agreement remains in effect between the Town and such entity. 2.10. ASLD Drainage Channel Improvements The Owner's predecessor -in- interest, the Arizona State Land Department (the "ASLD "), and the Town are parties to that certain Drainage Channel Agreement dated September 2006 filed in ASLD File No. 56- 111572 (the "Drainage Channel Agreement "), which provides that the developer will construct an off -site drainage outfall channel and associated improvements on the ASLD land immediately west of the Property (the "ASLD Drainage Channel Improvements "). The ASLD Drainage Channel Improvements are part of the Incomplete Infrastructure Improvements (see Section 2.11 below). The Town submitted to the ASLD an application for a ten -year right -of -way for drainage purposes. The Owner's predecessor -in- interest did not complete the ASLD Drainage Channel Improvements to the Town's satisfaction and, therefore, the ASLD never issued the right -of -way as provided by the Drainage Channel Agreement. The Owner, the Developer, and the Town shall promptly confer in good faith to determine a cost - effective and quality solution for completion of the ASLD Drainage Channel Improvements in accordance with Section 2.11 below and, thereafter, the Owner and/or the Developer will make application to ASLD for a right of entry, or such other instrument as ASLD may require, to complete the ASLD Drainage Channel Improvements. Following consultation with the ASLD, the Owner and/or the Developer, on behalf of the Town, will make a renewed right -of -way application with the ASLD for a drainage easement of ten or more years in the location of the ASLD Drainage Channel Improvements. The Owner and/or the Developer will pay all of the actual out -of- pocket costs and expenses incurred by the Town in connection with the acquisition of the right -of -way easement for drainage purposes, including, without limitation, application fees, surveying fees, engineering fees, inspection fees, and right -of -way acquisition costs, not otherwise paid to ASLD or bonded by the I {00025853.DOC / 561 SAGUAR0 , SRPjNGsB1= DEVELOPMENT AGREEMENT 6f7 /$[2011 -52 :545$ PM Regular Council Meeting - July 19, 2011 - Page 169 of 190 9 Owner's predecessor -in- interest. In connection with the right -of -way application, the Town will cooperate with the Owner, the Developer and ASLD to grant to ASLD development rights for the benefit of the remainder of the ASLD land that are consistent with its improved development potential resulting from the ASLD Drainage Channel Improvements. 2.11. Incomplete Infrastructure Improvements The Parties acknowledge that various Infrastructure Improvements and subdivision improvements were partially constructed by the Owner's predecessors -in- interest, or were not constructed by the Owner's predecessors -in- interest in accordance with the Town's approved plans and specifications. These improvements include Saguaro Peaks Boulevard and associated improvements, Saguaro Highlands Drive and associated improvements, public infrastructure improvements within Saguaro Springs Block Plat Blocks 8A, 8B and 4, an on -site system of drainage channels and associated improvements, the ASLD Drainage Channel Improvements and associated improvements, a water distribution system including in- ground infrastructure and well site, pump station and storage tank, and a wastewater collection system including in- ground infrastructure, lift station and force main (the "Incomplete Infrastructure Improvements "). As a condition to the Developer's development of the Project, the Developer shall complete or replace the Incomplete Infrastructure Improvements to the reasonable satisfaction of the Town based on industry standards for engineering, design, construction and utility of such classes of infrastructure improvements and the Town shall accept the applicable components of the Incomplete Infrastructure Improvements as public infrastructure and provide final approval and release of assurances for the applicable Incomplete Infrastructure Improvements. The Town and the Developer agree to confer in good faith toward cost - effective and quality solutions for completion or replacement of the Incomplete Infrastructure Improvements. The Developer may contract with outside consultants and/or conduct materials testing in an effort to best understand the current conditions and to identify the most cost - effective solutions for completion and/or remediation of the Incomplete Infrastructure Improvements. The Town agrees to consider and assess in good faith any such viable solutions so long as the solutions result in completed improvements that meet Town standards for acceptance, maintenance, performance and operation. Article 3. Project Phasing. 3.1. Initial Phase The first phase of the Project was originally intended to include 611 residential lots and associated improvements within Saguaro Springs Block Plat Blocks 8A, 8B, and 4. Phase IA of the Project will now encompass Block 8B only. The Lots within Blocks 8A and 4 will comprise Phase 1B of the Project, either separately in either order or together. Phases I and 1B (the combination of Blocks 8A, 8B, and 4) contain 611 total residential lots. 3.2. Phase IA - Block 8B . The following items shall be completed prior to the Town releasing the Developer from its subdivision assurances, including any partial subdivision assurance releases: 3.2.1. The completion of the Incomplete Infrastructure Improvements located within or directly benefiting Block 8B. 3.2.2. The completion of Saguaro Peaks Boulevard from Twin Peaks Road to Hidden Saguaro Trail {00025853.DOC / 561 SAGUARO .SSmNGQ DEVELOPMENT AGREEMENT €R /&2011 52:345$ PM Regular Council Meeting - July 19, 2011 - Page 170 of 190 10 3.2.3. The completion of Hidden Saguaro Trail from Saguaro Peaks Boulevard to its terminus at the drainage channel at the northeast corner of Block 8B. 3.2.4. Application of a slurry seal coating or some other form of roadway topping acceptable to the Town over all of Saguaro Highlands Drive, from Saguaro Peaks Boulevard to Twin Peaks Road, and Saguaro Peaks Boulevard from Hidden Saguaro Trail to Saguaro Highlands Drive. 3.2.5. The completion of the Project's water Infrastructure Improvements in accordance with the separate water service agreement. 3.2.6. The completion of the Project's wastewater Infrastructure Improvements in accordance with the separate sewer service agreement. 3.2.7. The substantial completion of functional Project on -site drainage Infrastructure Improvements, excluding non - drainage infrastructure located in the Drainage and Retention Areas (such as landscaping, Trails, the Park, open space, etc.). 3.2.8. The completion of the ASLD Drainage Channel Improvements. 3.3. Phase 1B - Block 4 and /or 8A . The Developer intends to develop residential lots in Block 8A and/or Block 4 sequentially in either order or together as the market dictates as Phase 1B of the Project. The following items shall be completed prior to the Town releasing the owner from its subdivision assurances within Block 8A or Block 4, including any partial subdivision assurance releases. 3.3.1. The construction of the applicable subdivision improvements. With respect to construction of the subdivision improvements, each Block in Phase 1B will be considered independently of one another. 3.3.2. The construction of Saguaro Highlands Drive, from Saguaro Peaks Boulevard to Twin Peaks Road. 3.3.3. The construction of Saguaro Peaks Boulevard from Hidden Saguaro Trail to Saguaro Highlands Drive. 3.4. Future Phasing The phasing of future development of the Project will be determined in the future as the market dictates. However, the following items will be phased as follows: 3.4.1. Saguaro Peaks Boulevard Construction of the unfinished portion of Saguaro Peaks Boulevard, from Saguaro Highlands Drive to Lambert Lane will be completed prior to the issuance of a permit (other than a model home permit) in any Block other than Blocks 8A, 813, and 4, i.e., prior to the Town's issuance of the 612" single - family residential building permit within the Project). 3.4.2. Lambert Lane East The Developer will commence construction of the east phase of Lambert Lane from the intersection of Lambert Lane and Saguaro Peaks Boulevard east to a termination point 4,900 feet east of Airline Road prior to the issuance of the 800t' single - family residential building permit within the Project. 3.4.3. Public Park The Developer will commence construction of the Park improvements prior to the issuance of the 1,000 single - family residential building permit within the Project. I {00025853.DOC / 5¢} SAGUARO SPRINGs DEVELOPMENT AGREEMENT &7/&2011 52:5451 PM Regular Council Meeting - July 19, 2011 - Page 171 of 190 11 3.4.4. Twin Peaks Road The Developer shall not be required to commence construction of its half - street improvements for Twin Peaks Road until after the third anniversary of the date this Development Agreement is recorded. Thereafter, the Developer shall commence construction within 90 days after receipt of the Town's written notice to the Developer to begin construction of the Twin Peaks Road improvements. The Town's written notice to begin construction includes an implied Town representation that the Town has secured all necessary right -of -way and easements necessary to construct the improvements in accordance with the approved plans and specifications. The Town shall indemnify and hold I harmless the Owner and the Developer from and against all construction claims and third -party claims resulting from the Town's failure to secure property rights needed for the construction. The Town will give written notice to the Developer to begin construction of the Twin Peaks Road improvements at the earlier of- 3.4.4. 1. the issuance of the 1,200th single - family residential building permit within the Project, or 3.4.4.2. within one year after the Town notifies the Developer in writing that Twin Peaks Road exceeds 12,000 Average Daily Trips based on a current traffic report. 3.4.5. Lambert Lane West/Airline Road The Developer will complete construction of Lambert Lane West/Airline Road at the earlier of. (i) the issuance of the 1,500 single - family residential building permit within the Project, or (ii) prior to the issuance of the first single- family residential building permit (other than a model home permit) in Block 1 of the Project. Article 4. Other Matters Relating to Improvements. 4.1. Road Permits and Right -of -Way Acquisition All rights -of -way necessary from property within the Project owned by the Owner for the construction of the Transportation Improvements shall be or have been provided at no cost to the Town. The Town shall acquire all other rights -of -way and all permits necessary for the construction of the Transportation Improvements. 4.2. Water Improvements The Town and the Owner's predecessor -in- interest entered into that certain Development Agreement for Construction of Water Facilities and Provision of Water Utility Service dated February 12, 2001, and recorded in Docket 11742 at Page 2771, Official Records of Pima County, Arizona, as amended (the "Water Service Agreement "). In connection with its obligations under the Water Service Agreement, the Owner's predecessor -in- interest constructed an eight inch water main from the north boundary of the Project through the right -of -way for Silverbell Road to the Town's existing La Puerta del Norte water main, in accordance with plan set PRV -99 -055 approved by the Town's Water Department (the "Water Main Improvements "). The construction and installation of the Water Main Improvements satisfies the Developer's obligation to complete all onsite and offsite water utilities infrastructure required by agreements for installation of subdivision water utilities infrastructure for the subdivisions that constitute the Project. The Parties agree to confer in good faith to amend the Water Service Agreement or enter into a new agreement that will supersede the Water Service Agreement to reflect the current status and planning of the Project. 4.3. Wastewater Improvements As of the date of this Agreement, the Town plans to provide wastewater service to the Project, but does not have all of the necessary governmental permits, licenses and approvals to do so. Until the Town has all of the necessary governmental permits, I {00025853.DOC / -5,61 SAGUARO cSYPRINGs DEVELOPMENT AGREEMENT &7 /$[2011 32:345$ PM Regular Council Meeting - July 19, 2011 - Page 172 of 190 12 licenses and approvals, the Town understands and agrees that the Developer must obtain wastewater services for the Project from Pima County. The Town acknowledges that wastewater infrastructure necessary for the Project to be served by Pima County has already been installed and substantially completed. If the Town becomes the wastewater utility service provider for the I Project, the Town will not require the Owner or the Developer to pay for, or construct or install, any wastewater infrastructure improvements that are needed to transition wastewater utility service for the Project from Pima County to the Town. If it is unclear whether Pima County or the Town is the wastewater utility service provider for the Project when the Developer requests wastewater service, the Developer may obtain wastewater services from the entity that the Developer determines to be most beneficial to the Project. If the Developer enters into a wastewater services agreement with Pima County and the Town later becomes the sewer service provider for the Project, the Town will assume the obligations of Pima County under any I wastewater services agreement between the Qner_Qr...t1�� and Pima County and the Town will not require_ a = —Qx%n z.__ ..1 the Developer to pay for, or construct or install, any wastewater infrastructure improvements other than those wastewater infrastructure I improvements required under the wastewater services agreement between „a�Qyv�a�rzr the Developer and Pima County and will not require any modifications, betterments or changes to any wastewater infrastructure improvements constructed and installed by the Developer that met Pima County's standards and requirements at the time of construction or were accepted by Pima County. 4.4. Right of Entry for Park and Trails Construction The Town hereby grants the Developer a right of entry to enter upon the Park Site and the Drainage and Retention Areas for the purposes of constructing the Park and the Trails; provided, however, that the Developer shall obtain all necessary permits and shall comply with the following during the construction of the Park and the Trails: 4.4.1. The Developer shall defend, indemnify and hold harmless the Town, its officers, agents, and employees from and against any and all bodily injury, death or property damage arising out of the Developer's negligent acts or omissions in connection with the Developer's or its contractors' entry onto the Park Site and the Drainage and Retention Areas during the construction of the Park and the Trails. 4.4.2. The Developer (or the applicable property owners' association) shall obtain liability insurance covering the Park Site and the Drainage and Retention Areas in minimum amounts of $1,000,000.00 general liability per occurrence with a minimum $2,000,000.00 general aggregate limit per occurrence. This insurance shall remain in force until the Town formally accepts the Park and the Trails. The Town shall be named as an "additional insured" under the liability insurance policy and shall be given at least 30 calendar days' written notice prior to cancellation. Before the Developer begins any work on the Park Site or the Drainage and Retention Areas, one or more certificates of insurance evidencing coverage as described in this paragraph shall be filed with the Town, care of the Marana Legal Department, Real Property Services Division, 11555 West Civic Center Drive Bldg A3, Marana, Arizona 85653 -7006. The Developer shall also file all certificates of insurance each time the policy is updated or extended. 4.4.3. The Developer (or the applicable property owners' association) shall be responsible to provide security for the Park and the Trails during construction. I {00025853.DOC / 56) SAGUARO 8FR1NGs DEVELOPMENT AGREEMENT &7/&201132:345$ PM Regular Council Meeting - July 19, 2011 - Page 173 of 190 13 4.5. Access for Construction of Improvements The Developer, its agents and employees, shall have the right to enter and remain upon and cross over any Town easements or rights -of -way to the extent reasonably necessary to facilitate construction, or to perform necessary maintenance or repairs of Infrastructure Improvements subject to the terms and conditions in Chapter 12 -7 ( "Construction in town rights -of- way ") of the Marana Town Code (or the applicable provisions of the Marana Town Code in effect at the time development occurs if less restrictive) and upon obtaining all necessary permits. 4.6. Right -of -Way Abandonment The Town shall abandon any unnecessary public rights -of -way or easements currently located on the Property, as necessary to implement the Infrastructure Plan, in conformance with applicable Arizona law and Town ordinances, resolutions and rules in effect at the time of abandonment. I 4.7. Right -of -Way Acquisition The Town shall cooperate reasonably with the Owner and the Developer and assist the Owner and the Developer to acquire any public rights -of -way or public easements needed to implement the Infrastructure Plan, in a manner consistent with the following: I 4.7.1. The Owner or the Developer shall use commercially reasonable efforts to acquire any and all property rights needed for the utilities and other Infrastructure Improvements serving the Property, including, without limitation, any easements under and across North Quarry Road. 4.7.2. If the Owner or the Developer is unable to obtain any necessary property rights on commercially reasonable terms and conditions, the Owner or the Developer may notify the Town in writing requesting the Town to exercise its power of eminent domain to acquire the necessary property rights. I 4.7.3. Upon receiving notice from the Owner or the Developer, the Town shall obtain and provide to the Owner or the Developer a cost estimate for completing the appraisal, any necessary land surveying or legal description preparation, and title work (litigation guarantee) for the acquisition. I 4.7.4. Upon the Owner or the Developer's deposit with the Town of funds sufficient to cover the costs set forth in Subsection 4.7.3 above, the Town shall promptly initiate the appraisal of the property rights. I 4.7.5. Once the appraisal is obtained, if the Owner or the Developer elects to have the Town proceed with the eminent domain proceeding, the Owner or the Developer shall deposit with the Town an amount equal to the appraised value of the property rights and the Town's reasonable estimate of the actual out -of- pocket attorneys' fees and costs to prosecute the eminent domain proceedings. If the Town uses its in -house counsel to prosecute the eminent domain proceedings, "actual out -of- pocket attorneys' fees" shall be calculated at $100 per hour of attorney time and $40 per hour of paralegal time. If the Town is unable to use its in -house counsel to prosecute the eminent domain proceedings, the Town will use the procedure set forth in Section 1.6 above to select outside counsel. I 4.7.6. Upon the Owner or the Developer's deposit with the Town of funds sufficient to cover the costs set forth in Subsection 4.7.5 above, the Town shall promptly make the offer required under A.R.S. § 12- 1116(A), and if the offer is not timely accepted, file a condemnation lawsuit in Pima County Superior Court to obtain the necessary property rights. I 100025853.DOC / 3¢1 SAGUARO SPRiNGs DEVELOPMENT AGREEMENT 6/7/&2011 3 PM Regular Council Meeting - July 19, 2011 - Page 174 of 190 14 4.7.7. If the Town exercises its power of eminent domain pursuant to this Section 4.7 at the request of the Owner or the Developer, the Owner or the Developer shall pay all reasonable costs of expenses of such condemnation action, including, without limitation, the condemnation award, costs of litigation (including without limitation expert witness fees), and reasonable attorneys' fees. 4.7.8. If the Town settles an eminent domain lawsuit brought pursuant to this Section 4.7, I the Owner or the Developer shall pay the settlement costs, provided that those costs do not exceed the higher of (a) 120% of the appraised value of the condemnation parcel or (b) an I amount approved by the Owner or the Developer. 4.7.9. The Town will not withhold building permits or final inspections (certificates of occupancy), or prohibit the sale, of homes while property rights are being acquired in a manner consistent with this Section 4.7 and so long as the homes have continuous, safe and legal vehicular access and continuously available water, sewer, and electric utility service. 4.8. Joint Town Eminent Domain Action The Town, in its sole and absolute discretion, may I choose to acquire property rights beyond those the Owner or the Developer has requested pursuant to Section 4.7 above. If it does so, the Town shall be responsible for all costs and expenses related to that eminent domain action, including, without limitation, any final judgment or settlement amount. If the Town prosecutes an eminent domain action for these additional property rights against the same private property owner whose rights are being acquired pursuant to Section 4.7 above, the Town may acquire all of the needed property rights in a joint prosecution of the eminent domain actions, and the Parties shall share the joint costs on an I equitable basis as determined by the _Owner or the Developer and the Town. 4.9. Saguaro Springs CFD The Saguaro Springs CFD was created to finance the construction and/or acquisition of certain "public infrastructure" (as that term is defined in A.R.S. § 48 -701) benefiting the Project. 4.9.1. The policies and financial terms and Owner and Developer security obligations for the Saguaro Springs CFD shall be similar to and consistent with the District Development, Financing Participation and Intergovernmental Agreement approved by the Saguaro Springs CFD Board of Directors on September 4, 2007, with such modifications as the Parties mutually approve. 4.9.2. The CFD Development Agreement and the formation documents referenced in Recital O above shall govern all matters relating to the Saguaro Springs CFD. 4.9.3. The Town understands and acknowledges that the Owner acquired the Project through foreclosure and does not have books and records from the prior owners of the Property pertaining to public bidding. To the extent not prohibited by applicable law, the Parties will include in the CFD Development Agreement provisions to allow public infrastructure appraisal or other evidence of the value of the public infrastructure improvements for purposes of reimbursing the Developer for public infrastructure costs of the Project. Alternatively, to the extent not prohibited by applicable law, the Saguaro Springs CFD shall acquire the real property interest containing the eligible public infrastructure at the fair market value of the real property interest as improved, including the eligible public infrastructure. I {00025853.DOC / -5 -6} SAGUARO SPRINGs DEVELOPMENT AGREEMENT 6/7/&201152:54 PM Regular Council Meeting - July 19, 2011 - Page 175 of 190 15 4.9.4. Costs of all public infrastructure improvements constructed or to be constructed for the Project by the Developer or its predecessors -in- interest will be eligible for reimbursement from Saguaro Springs CFD general obligation, special assessment, and revenue bond proceeds at the request of the Developer, subject to the limitations, terms and provisions of the CFD Development Agreement. 4.9.5. For purposes of Saguaro Springs CFD reimbursement eligibility, costs of public infrastructure improvements may include, without limitation, costs of engineering, permits, fees, surveying, staking, studies, roadway, sidewalk, street lights, traffic signalization, street signage, street lights, water, sewer, storm drainage, drainage and other related expenditures, public right -of -way acquisition costs (including, without limitation, attorneys' fees and I condemnation awards or settlement amounts incurred by the Owner or the Developer pursuant to Section 4.7 above), and payments in lieu of these costs, as set forth in and subject to the limitations, terms and provisions of the CFD Development Agreement. 4.9.6. Any public infrastructure improvements that are to be constructed, installed, acquired or funded by the Developer may be constructed, installed or funded directly by the CFD, or the CFD may acquire the public infrastructure improvements that are constructed, installed, acquired, or funded by the Developer and reimburse the Developer for the cost thereof, subject to the limitations, terms and provisions of the CFD Development Agreement. 4.10. Reimbursement from Others If real property that benefits from the Infrastructure Improvements (`Benefited Parcel ") is the subject of a rezoning application or other request for governmental approval involving the exercise of the Town's legislative discretion, the Town shall consider imposing a stipulation or condition requiring the Benefited Parcel to reimburse the Developer for the Benefited Parcel's proportionate share of the actual cost incurred by the Developer (and not paid or reimbursed by the Town) in connection with the construction of the Infrastructure Improvements being utilized by the Benefited Parcel. ^ Article 5. The = ffights . AtflU Ownerls Developer' -stets, Regarding Future Town Actions 5.1. Protected Development Rights The protected development rights (as defined in A.R.S. § 9 -1201 paragraph 3) granted pursuant to this Development Agreement and the Development Criteria shall remain in effect and shall not be changed without the agreement of the Owner and the Developer for the term of this Development Agreement. 5.2. Development Impact Fee Credits Based on the cost identified in the infrastructure improvements plan supporting a Town - adopted development impact fee, the Town shall provide a credit toward the payment of the Town - adopted development impact fee for the Owner or the Owner's predecessor -in- interest's dedication of public sites, and construction or installation of improvements and other necessary public services (or in -lieu payments) included in the Town infrastructure improvements plan supporting the Town- adopted development impact fee and for which a Town- adopted development impact fee is assessed. For purposes of this paragraph, public sites, improvements and other necessary public services includes any public improvements or publicly dedicated lands addressed in this Development Agreement and any other public improvements of the type constructed by the Developer or public land dedicated, I and any in -lieu payments made, by the Owner or the Developer for which the Town has adopted a development impact fee. Credits shall be provided as required by A.R.S. § 9- 463.05, as it may I {00025853.DOC / 5¢} ,SAGUARO SFRINc DEVELOPMENT AGREEMENT 6/7/&201132:545$ PM Regular Council Meeting - July 19, 2011 - Page 176 of 190 16 be amended. The Developer is not required to comply with the statutory public procurement procedures in order to receive development impact fee credits. At the Developer's option, no portion of the development impact fee credits applicable to the Park (see Section 2.6, including the publicly dedicated lands for the Park) shall be allocated to Saguaro Springs Block Plat Block 1 (or designated portions of Block 1). 5.3. No Moratorium To allow the Developer to have a predictable source of funds to amortize the cost of the Infrastructure Improvements, the Town shall not impose a moratorium against any development on the Property that is consistent with the Development Criteria or this Development Agreement. This prohibition includes any restriction, condition or any other method that will delay or limit the rate, timing or sequencing of the planning, development, construction, use or disposition of any part of the Property. This prohibition shall not apply to the extent that a limitation may be necessary for the Town (a) to comply with the minimum mandatory requirements of state or federal laws and regulations that the Town is legally required to adopt and enforce to the extent that this Development Agreement cannot be amended to allow compliance with the minimum requirements of such state or federal laws or regulations; (b) to alleviate legitimate severe threats to public health and safety of the citizens of the Town not related to the Infrastructure Improvements; or (c) to enforce floodplain restrictions before a letter of map revision (revising a flood insurance rate map) becomes effective. Any such limitations shall not be arbitrary, and it shall be the most minimal and least intrusive possible. I 5.4. Vested Rights Nothing in this Development Agreement shall preclude Qwxler__ox the Developer from claiming that the Developer has vested rights to complete the development of the Project in accordance with currently- applicable regulations based on the significant investment and improvements made on the Property by the Owner and its predecessors in interest. These claimed vested rights include, but are not limited to, the uses and the range of densities and intensities of uses provided in the Development Criteria. Article 6. Cooperation and Alternative Dispute Resolution. 6.1. Appointment of Representatives To further the commitment of the Parties to cooperate in the implementation of the Zoning Ordinances and this Development Agreement, the Parties each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Owner and the Developer. The initial representative for the Town (the "Town Representative ") shall be Kevin Kish or a replacement party to be selected by the Town Manager, and the initial representative for the Owner and the Developer (the "Developer Representative ") shall be Brian Baehr or a replacement project manager to be selected by the Developer. The representatives shall be available at all reasonable times to discuss and review the performance of the Parties to this Development Agreement and the development of the Project pursuant to the Zoning Ordinances, this Development Agreement, and the MDC. 6.2. Default; Remedies If either Party defaults (the "Defaulting Party") with respect to any of that Parry's obligations under this Development Agreement, the other Parry (the "Non- Defaulting Party") shall be entitled to give written notice in the manner prescribed in Section 8.1 below to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected (the "Dispute "). The Defaulting Party shall then have (i) 20 days from the date of the notice of the Dispute 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 of the Dispute to cure the default if action other than the payment of money is I {00025853.DOC / 561 SAGUARO SPR4NGs DEVELOPMENT AGREEMENT 667/$[2011 52:545$ PM Regular Council Meeting - July 19, 2011 - Page 177 of 190 17 reasonably 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 such 30 -day period thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this Section, then the Non - Defaulting Party shall be entitled to begin the mediation and arbitration proceedings set forth in Sections 6.3 and 6.4 below. The Parties agree that due to the size, nature and scope of the Project, and due to the fact that it may not be practical or possible to restore the Project to its condition prior to the Developer's development and improvement work, once implementation of this Development 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 Development Agreement. This Section shall not limit any other rights, remedies, or causes of action that either Party may have at law or in equity. A default by one Developer shall not constitute a default by any other Developer and the Town may not withhold or delay issuance of building permits or certificates of occupancy or other permits, approvals or licenses from one Developer due to the default of another Developer.- hing his araer - 11 sh all.. be_oo ..mstrued_ t�resulree T�vn__o_se., aa nt ,tleloptxaent azlzrzval_ la six thy Developer or their successors or signs if a successor or assignee fails to commence or complete improvements required by this Development Agreement nrior to issuance of the pernit or granting of the approval For example if the Owner or the Developer (or their successors or assigns) do not commence construction of the Park imnrovement_s_prior to the issuance of the 000' single - fanny residential building hermit within the Project pursuant to Section 3 4 3 above, the Town may thereafter withhold residential building permits from all Owners and eve) ers and their successors and assigns) within the Project until the Park improvements are commenced. 6.3. Mediation If there is a Dispute that the Parties cannot resolve between themselves, the Parties agree that there shall be a 45 -day moratorium on arbitration during which time the Parties agree to attempt to settle the dispute by non - binding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration Association ( "AAA "), but not under the auspices of the AAA. The matter in dispute shall be submitted to a mediator mutually selected by the 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. 6.4. Mandatory Arbitration After mediation, as provided for in this Article, any dispute, controversy, claim or cause of action arising out of or relating to this Development Agreement shall be settled by submission of the matter by both Parties to binding arbitration in accordance with the rules of the AAA and the Arizona Uniform Arbitration Act, A.R.S. § 12 -501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. The arbitration shall be held under the rules of the AAA, but not under the auspices of the AAA. The matter in dispute shall be submitted to an arbitrator mutually selected by the Developer and the Town. If the Parties cannot agree upon the selection of an arbitrator within seven days, then within three days thereafter the Town and the Developer shall request the I {00025853.DOC / 3 - SAGUARO cSPRING.S DEVELOPMENT AGREEMENT 6/7L&2011 3 PM Regular Council Meeting - July 19, 2011 - Page 178 of 190 1 presiding judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint an independent arbitrator. The arbitrator selected shall have at least ten years' experience in arbitrating disputes relating to real estate development. Article 7. Lender Protection. 7.1. Notices The Owner and the Developer shall have the right at any time, and as often as they desire, to finance the Property and to secure the financing with a lien or liens against the Property. Subject to notice to the Town by the lender ( "Lender ") as to the name, address, facsimile number, e -mail address or other means of communication for notice purposes, of the Lender, the Town shall use good faith efforts to give notice to Lender of any default or Dispute at the same time the Town gives notice of the same default or Dispute to the Developer. 7.2. Collateral Assi nment Notwithstanding any other provision of this Development Agreement, the Owner or the_ Developer may assign all or part of its rights and duties under this Development Agreement to any financial institution from which the Owner_or the Developer has borrowed funds for use in accdul_ring the Property or constructing the Infrastructure Improvements or otherwise developing the Property without such financial institution assuming the obligations of the Owner or the Developer under this Development Agreement, but without releasin the Owner or the Developer from its obligations under this Development Agreement. 7.3. Estoppel Certificate Within 30 days following any written request by either the Town, the Owner, the Developer, Lender or any prospective Lender, which request can be made from time to time, the other shall confirm the following in writing to the requesting party and/or its prospective investors, purchasers, lenders or encumbrancers, that (a) this Development Agreement is unmodified and in full force and effect (or reasons why it is not); (b) there are no uncured Defaults under this Development Agreement (or reasons why there are); and (c) any other information reasonably requested by the requesting party. Article 8. Notices and Filings. 8.1. Manner of Serving All notices, filings, consents, approvals and other communications provided for herein or given in connection herewith 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: The Town: Town of Marana Town Manager 11555 North Civic Center Drive Building A3 Marana, Arizona 85653 With a required copy to: Town of Marana Town Attorney 11555 North Civic Center Drive Building A3 Marana, Arizona 85653 I t00025853.DOC/_5 -6} SAGUARO SPR4wA DEVELOPMENT AGREEMENT &7/&201152:5451 PM Regular Council Meeting - July 19, 2011 - Page 179 of 190 19 The Owner: Marana 670 Holdings, LLC 7377 East Doubletree Ranch Road Suite 100 Scottsdale, AZ 85258 Attention: Brian Baehr, Vice President, Land Development With required copy to: Fennemore Craig, P.C. 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012 -2913 Attention: Jay S. Kramer Grayhawk: [Insert] [Address] Attention: [Insert] With required copy to: Fennemore Craig, P.C. 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012 -2913 Attention: Jay S. Kramer or to such addresses as either Party hereto may from time to time designate in writing and deliver in like manner. Any such notice shall be deemed given and received upon personal delivery against a signed acknowledgment of receipt or affidavit of delivery or three business days after deposit in the United States mail in the manner provided above. Article 9. General Terms and Conditions. 9.1. Annexation From time to time the Owner may add all or any portion of the Excluded Property to the Property by recording an annexation certificate that describes the land and states that the land is being added to the Property and is subjected to this Development Agreement. An annexation certificate shall be signed and acknowledged by the Owner and the fee simple title I owner of the land to be annexed, if not the eF and recorded in the office of the Pima County Recorder. Upon annexation of any of the Excluded Property in accordance with this paragraph, the annexed land shall thereafter be subject to this Development Agreement and shall be automatically de- annexed from the Prior Development Agreement. 9.2. Term If not sooner terminated, this Development Agreement shall automatically terminate and shall thereafter be void for all purposes on December 31, 2031. If the Parties determine that a longer period is necessary for any reason, the term of this Development Agreement may be further extended by written agreement executed by the Parties. 9.3. Waiver No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the Town, the Owner, or the Developer of the breach of any covenant of this Development Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Development Agreement. 9.4. Attorneys' Fees In case of any Dispute, the Party prevailing in any arbitration, court action or other proceeding shall be paid all reasonable costs, expert witness fees, litigation related costs and reasonable attorneys' fees by the non - prevailing Party, and if any judgment is I {00025853.DOC / 5¢} SAGUARO SPR{NGQ DEVELOPMENT AGREEMENT &7 /$12011 52:545B PM Regular Council Meeting - July 19, 2011 - Page 180 of 190 20 secured by the prevailing Party, all such costs and fees shall be included in the judgment, such fees to be set by the arbitrator or court and not by a jury. Nothing in the use of the word "court" in the preceding sentence shall constitute a waiver of Section 6.4 above, requiring disputes to be resolved by binding arbitration. 9.5. Counterparts This Development 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. 9.6. Headings The descriptive headings of this Development Agreement are intended to be used to assist in interpreting the meaning and construction of the provisions of this Development Agreement. 9.7. Recitals The recitals set forth at the beginning of this Development Agreement are hereby acknowledged, confirmed to be accurate and incorporated here by reference. 9.8. Exhibits Any exhibit attached hereto shall be deemed to have been incorporated herein by this reference with the same force and effect as if fully set forth in the body hereof. 9.9. Further Acts Each of the Parties shall execute and deliver all such documents and perform all such acts as reasonably necessary, from time to time, to carry out the matters contemplated by this Development 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 Project by the Developer and its successors. 9.10. Future Effect 9.10.1. Time of the Essence Time is of the essence of this Development Agreement. All of the provisions hereof shall inure to the benefit of and be binding upon the successors, assigns and legal representatives of the Parties. 9.10.2. Successors and Assigns This Development Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties pursuant to A.R.S. § 9- 500.05 (D). ligatt ef- its Unon the conveyance of all or anv�ortion of the Prc�ect (other than a Public Lot as defined in Section 9,10.3-below), all of the Owner's (or its successor_W right, title, interest. duti obligations and liabilities under this Development Agreement i€-the transferee-agrees- to _be- -f ly -- bound --by- the provisions - -ef- this- -De-velepnient- Agreement -Ait-)- assign ent by- the x�ith respect to the portion of the Project conveyed and first arising after the effective date of such conveyance shall automatically be *g. d to.- and assumed by, the purchaser of the property. The assigning Owner for dw-Dev lep -sl' �l to4he n r °' ^f +h° Town -, -wh i, h ,haH -no be�a nabl�+ withheld -or delayed successor) shall automatically b e relieved of all duties obligations and liabilities-arising from and after the effective date of such conveyance with respect to the portion of the Project convey Notwithstanding the foregoing, the Owner , I {00025853.DOC / 561 SAGUARO vSSPR4NGS DEVELOPMENT AGREEMENT &7 /$(2011 52:54$8 PM Regular Council Meeting - July 19, 2011 - Page 181 of 190 21 GL 77 I F1:1 , entity-under common---controt- with the -Owner or the-Developer or its suceesso and purchaser of all or any portion of the Project may, expressly delineate the rights duties. obligations and liabilities under this Development Agreement being assigned and assumed or retained by a written instrument executed by the Owner (or its successor) and the purchaser. and recorded in the Pima ounZ/ Recorder's office Nothing in this paragraph shall be construed to re uire the Town to issue a permit or grant a development approval to the Owner or the Developer (or their successors or assigns) if a successor or assignee fails to commence or complete improvements required by this Development Agreement i2rior to issuance of the permit or granting of the approval. For example, if the Owner or the Q_e elape�(_Q their successors S r assierls da not cQ�xun�nce construtionof the 1?arl t he TQYem=LPdQL o `00'' sin le -f esidential....bui : _ = : _tlaue�e y r�u zxhhQld residential building _permits from all Owners and Developers (and their successors and ssig_ns) within t e Prect until the Park improvement a_ re eolrLmenced 9.10.3. Termination Upon Sale to Public It is the intention of the Parties that although recorded, this Development Agreement shall not create conditions or exceptions to title or covenants running with the Property. Nevertheless, in order to alleviate any concern as to the effect of this Development Agreement on the status of title to any of the Property, this Development 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 purchaser or user thereof, or any lot or parcel conveyed or dedicated to any governmental authority, utility provider, school district or property owners association (a "Public Lot "), and thereupon such Public Lot shall be released from and no longer be subject to or burdened by the provisions of this Development Agreement. Nothing herein shall limit or affect the validity of documents to be recorded other than this Development Agreement nor of the proposed bond obligations and tax assessments which, when imposed upon the Property, shall run with the Property in accordance with applicable laws. 9.11. No Partnership and Third Parties This Development Agreement is not intended to, and nothing contained in this Development Agreement shall, create any partnership, joint venture or other arrangement between the Parties. No term or provision of this Development Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. 9.12. 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 Development Agreement. 9.13. Conflict of Interest This Development Agreement is subject to A.R.S. § 38 -511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 9.14. Imposition of Duty by Law This Development Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. I {00025853.DOC / 3 -6} ,SAGUARO SFRFNGs DEVELOPMENT AGREEMENT 617/&2011 5:345$ PM Regular Council Meeting - July 19, 2011 - Page 182 of 190 22 9.15. Entire Development Agreement This Development Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Development Agreement. All prior and contemporaneous agreements, representations and understandings of the Parties, oral or written, are hereby superseded and merged into this Development Agreement. 9.16. Amendment No change or addition is to be made to this Development Agreement except by a written amendment executed by the Parties. Any amendment to this Development Agreement shall be recorded in the Pima County Recorder's office no later than ten days after the Parties have entered into the amendment. 9.17. Names and Plans The Owner 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 Owner in connection with the Property or any Plans, provided, however, that in connection with any conveyance or portions of the Infrastructure as provided in this Development 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. 9.18. Good Standing: Authority The Owner and Grayhawk represent and warrant to the Town that they are duly formed and validly existing under the laws of the state of Arizona. The Town represents and warrants to the Owner and Grayhawk that it is an Arizona municipal corporation with authority to enter into this Development Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Development Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 9.19. Severability If any provision of this Development Agreement is declared void, illegal, invalid or unenforceable, such provision shall be severed from this Development Agreement, which shall otherwise remain in full force and effect. If any applicable law or court of competent jurisdiction prohibits or excuses the Town from undertaking any contractual commitment to perform any act hereunder, this Development Agreement shall remain in full force and effect, but the provision requiring such action shall be deemed to permit the Town to take such action at its discretion, if, however, the Town fails to take the action specified hereunder, the Developer shall be entitled to terminate this Development Agreement -with. rgip -e �_IQ � a��! _pQ�S oxa szf x�._ Pr.4_.._...ject - 1:ied_b_v_s_ - c Developer 9.20. Governing Law This Development Agreement is entered into in Arizona and shall be construed and interpreted under the laws of the State of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 6.4 above, requiring disputes to be resolved by binding arbitration. 9.21. Interpretation This Development Agreement has been negotiated by the Parties, and no Party shall be deemed to have drafted this Development Agreement for purposes of construing any portion of this Development Agreement for or against any Party. 9.22. Recordation The Town shall record this Development Agreement in its entirety in the office of the Pima County Recorder no later than ten days after it has been executed by the Parties. I {00025853.DOC / -5-6} SAGUARO SPRFNGS DEVELOPMENT AGREEMENT &7/&2011 - 52: - 545B PM Regular Council Meeting - July 19, 2011 - Page 183 of 190 23 9.23. No Owner or Developer Representations Nothing contained in this Development Agreement shall be deemed to obligate the Town, the Owner, or the Developer to commence or complete any part or all of the development of the Property. 9.24. Approval If any Party is required pursuant to this Development Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld, delayed or conditioned. 9.25. Force Majeure If any Party shall be unable to observe or perform any covenant or condition of this Development Agreement by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Development Agreement so long as such Party shall use its commercially reasonable efforts to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition can be cured within a reasonable amount of time. "Force majeure" as used in this paragraph means any condition or event not reasonably within the control of such Party, including, without limitation, "acts of God;" strikes, lock -outs, or other disturbances of employer /employee relations; acts of public enemies; orders or restraints of any kind of the government of the United States or any state or subdivision 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; financial inability excluded. Failure to settle strikes, lock -outs and other disturbances of employer /employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing party or parties, in either case when such course is in the judgment of the Party hereto unfavorable to such Party, shall not constitute failure to use its best efforts to remedy such a condition. 9.26. Definitions Unless otherwise defined in this Development Agreement, all terms used in this Development Agreement shall have the meaning assigned to such terms in the Arizona Community Facilities District statutes, Arizona Revised Statutes Title 48 Article 6 (A.R.S. §§ 48 -701 through 48 -725), so long as such interpretation does not conflict with any other provision of this Development Agreement. I {000258$3.DOC / 56 } ,SAGUARO SPRINGS DEVELOPMENT AGREEMENT 6/7 /&2011 52:545$ PM Regular Council Meeting - July 19, 2011 - Page 184 of 190 24 IN WITNESS WHEREOF, the Parties have executed this Development Agreement as of the last I date set forth below their representatives" respective signatures. THE TOWN: THE OWNER: TOWN OF MARANA, an Arizona municipal MARANA 670 HOLDINGS, LLC, an Arizona corporation limited liability company By: Grayhawk Holdings Inc., an Arizona By: corporation, Manager Ed Honea, Mayor ATTEST: By: Jocelyn C. Bronson, Town Clerk Name: APPROVED AS TO FORM: Title: Frank Cassidy, Town Attorney GRAYHAWK• [TO BE INSERTED, a ^ By: [To be inserted], a ^, ^Manager By: Name: Title: STATE OF ARIZONA ) County of Maricopa ) The foregoing instrument was acknowledged before me this day of , 2011 by the of Grayhawk Holdings Inc., an Arizona corporation, the Manager of MARANA 670 HOLDINGS, LLC, an Arizona limited liability company, on behalf thereof. Notary Public My commission expires: I {00025853.DOC / 561 SAGUARO SPRlNGs DEVELOPMENT AGREEMENT 6/7/$[2011 52:545$ PM Regular Council Meeting - July 19, 2011 - Page 185 of 190 25 STATE OF ARIZONA ) County of Maricopa ) The foregoing instrument was acknowledged before me this day of , 2011 by , the of ^, a ^, the ^Manager of [To BE INSERTED], a ^, on behalf thereof. Notary Public My commission expires: I {00025853.DOC / 3fi} SAGUARO SPRiNGs DEVELOPMENT AGREEMENT &7/&2011.52:54a PM Regular Council Meeting - July 19, 2011 - Page 186 of 190 26 LIST OF EXHIBITS Exhibit A Property Depiction Exhibit B Property Legal Description Exhibit C Current MDC R -6 Residential zoning regulations Exhibit D Current MDC R -36 Residential zoning regulations Exhibit E Current Zone C Large Lot Zone zoning regulations Exhibit F Current Zone F Specific Plan (Saguaro Springs Specific Plan) zoning regulations Exhibit G Cross - section for a four -lane collector or arterial roadway (Twin Peaks Road) Exhibit H Cross - section for a two -lane rural collector roadway (Airline Road; Lambert Lane) Exhibit I Park I {00025853.DOC / 5k} SAGUARO SRR}NGs DEVELOPMENT AGREEMENT 6/7/&2011 32:345$ PM Regular Council Meeting - July 19, 2011 - Page 187 of 190 27 Document comparison by Workshare Professional on Friday, Julx 08, 20114:52:53 PM SIVM N \ Document 1 ID file://C:/Documents and Settings /fcassidy /My Documents /Saguaro Bloom DA (00025853- 5).DOC Description Saguaro Bloom DA (00025853 -5) Document 2 ID ile: / /X:/WDOX/TNATDOCS /DEVELOP /SAGSPRNGS /000 25853.DOC Description 00025853 Rendering set Istandard ��� Insertion Deletion Move --f'ro - Move Style change Format change Inserted cell ,� \� - Deleted cell Moved cell Split/Merged cell Paddin cell I E \ g \a 011 -1 . WITIN Count Insertions 73 Deletions 37 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 110 Regular Council Meeting - July 19, 2011 - Page 188 of 190 MAR ,NA t"M" PAROAW 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 Council Chambers, July 19, 2011, 7:00:00 PM To: Mayor and Council Item D 1 From: Gilbert Davidson , Town Manager Strategic Plan Focus Area: Not Applicable Subject: Legislative /Intergovernme regarding all pending state and federal legislation and report on recent meetings of other legislative bodies Discussion: This item is scheduled for each regular council meeting in order to provide an opportunity for discussion of any legislative or regional intergovernmental item that might arise. Periodically, an oral report may be given to supplement the Legislative Bulletins. ATTACHMENTS: Name: Description: Type: No Attachments Available Staff Recommendation: Upon the request of Council, staff will be pleased to provide recommendations on specific legislative /intergovernmental issues. Suggested Motion: Mayor and Council's pleasure. Regular Council Meeting - July 19, 2011 - Page 190 of 190