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HomeMy WebLinkAboutResolution 2006-199 foothills development agreement . SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 RES 12945 5261 2 20062341512 12/06/2006 16:41 . F. A~ RODRIGUEZ I RECORDER RECORDED BY: CKB DEPUTY RECORDER 8046 PEl DOCKET: PAGE: NO. OF PAGES: SEQUENCE: MAIL AMOUNT PAID $ 8.00 -.J MARANA RESOLUTION NO. 2006-199 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A DEVELOPMENT AGREEMENT WITH TAPESTRY PROPERTIES III, L.L.C., REGARDING THE FOOTHILLS DEVELOPMENT PROJECT. WHEREAS the Mayor and Council find that the terms and conditions of the Tapestry Properties III, L.L.C., development agreement are in the best interest ofthe Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the development agreement between the Town of Marana and Tapestry Properties III, L.L.c., attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf ofthe Town of Marana. BE IT FURTHER RESOLVED that the 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 ofthe aforementioned agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZON,~~JWSw5 ,th d, ay of December, 2006. ~ "..\\(.~1 '~lllfr :.\" of!'!J4'~ f/ . ;If ~ ~,\\\"''',,~-<:>. ,~ A so~*' ~~~~ '/ ~ ::: ~ CORPORATE ~ I' .... ,c.---- ~ =~E O(X) ~}7: :: S. SEAL ii :: Mayor Ed Honea ...... 'C<: ~..... ~ ~ ~;: ATTEST: ~ ...{'I/IUU\\\~ ~ ~k~/Z. ~cj~ '~ /J 4':!tfJ~U~\\\"" , vr~ ronson, Town Clerk ,,~'" ,~;, q ~1 ~i:~ t::l,' ~1:1l ~:l '~~~: t,~ ~" {00003033,DOC I} FJC/cds 11/29/06 '" "" Exhibit A to Marana Resolution No. 2006-199, entitled FOOTHILLS DEVELOPMENT AGREEMENT, by and between the Town of Marana and Tapestry Properties III, L.L.C., was recorded separately on December 6, 2006, at Docket /29t/S~ , Page _5' 2/u / in the Office of the Pima County Recorder. - .I~ "~ rl""\i '~~, Si d !~l ~J $"'" ",:1 ~~~ h'~ ":1 ,~l", F. ANN RODRIGUEZ, RECORDER RECORDED BY: CKB DEPUTY RECORDER 8046 PEl DOCKET: PAGE: NO. OF PAGES: SEQUENCE: 12945 5263 12 20062341513 12/06/2006 16:41 SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 AG MAIL AMOUNT PAID $ 11. 50 FOOTHILLS DEVELOPMENT AGREEMENT THIs DEVELOPMENT AGREEMENT ("this Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and TAPESTRY PROPERTIES III, L.L.C., an Arizona limited liability company (the "Developer"). The Town and the Developer are collectively referred to in this Agreement as the "Parties," anyone of which is sometimes individually referred to as a "Party." RECITALS A. The Developer is the owner of approximately 395.67 acres of real property located within the corporate limits of the Town, consisting of Pima County Assessor's Parcel Numbers 219-33-0010, 219-33-0020, 219-33-003B, 219-33-0040, 219-33-0050, 219-33-0060 and 219-33-0070 (the "Property"). B. On April 18, 1990, the Mayor and Council of the Town adopted Ordinance No. 90.11, rezoning the Property to "Foothills Specific Plan." In addition to the Property, Ordinance No. 90.11 also included an 18.9-acre parcel carved out of what is now Pima County Assessor's Parcel Number 219-33-003B. This 18.9-acre parcel that was originally included as part of the Foothills Specific Plan is now part of the land subdivided as part of Canyon Pass IV -B at Dove Mountain, recorded in the Pima County Recorder's office at Book 59 of Maps and Plats, Page 6, and is not included in the Property. C. The Foothills Specific Plan authorizes the development of 267 acres for residential use, with a maximum of 1,471 dwelling units, and an additional 147 acres for hotel, commercial/office, commercial health spa, roads, open space, and other uses. D. Over the past sixteen years, the Tortolita Fan area of which the Property is a part has developed at densities and disturbance levels significantly lower than anticipated when the Foothills Specific Plan was adopted. E. On November 7, 2006, Arizona voters approved Proposition 207 ("Prop 207"), requiring (in relevant part) local governments to compensate landowners for any market reduction in land value resulting from land use decisions that reduce the existing rights to use, divide sell or possess private real property. F. The Parties wish to provide for development of the Property in a manner that is consistent with and sensitive to the surrounding environment and land uses and reasonably takes into consideration the zoning entitlements on the Property as required by Prop 207. G. The Parties prefer to avoid disagreements and misunderstanding about the development regulations that apply to the Property by reaching agreement concerning the development of the Property as provided in this Agreement. H. This Agreement is a "Development Agreement" under A.R.S. S 9-500.05. 1. The following are among the Town's development regulations that now apply to the Property (the "Pre-Existing Regulations"): {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 1 - 12/1/20063: 12 PM .:~,. :~:!!~ !::::II "'I I~,; , 11:'" :,,::1' Ir::I! Ie:" I",.JI ~~: roo, :~::i ,2 i) The Foothills Specific Plan. ii) The Marana Development Code (including the written rules, regulations, procedures, and other policies relating to development of land, whether adopted by the Mayor and Councilor by Town Staff) (collectively the "Marana Development Code"). J. The Pre-Existing Regulations notwithstanding, the Developer and the Town desire that the Property be developed in a manner consistent with the Marana Land Development Code existing on the Effective Date, as amplified and supplemented by this Agreement. Collectively, these governing documents are referred to in this Agreement as the "Development Regulations." K. The Town and the Developer acknowledge that the development of the Property pursuant to this Agreement will result in planning and economic benefits to the Town and its residents. L. The Developer has made, and by this Agreement will continue to make, a substantial commitment of resources for public and private improvements on the Property. M. This Agreement is consistent with the portions of the Town's General Plan that apply to the Property. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Agreement, the Parties hereby agree as follows: Article 1. Land Use Restrictions. 1.1. General. Except as provided in paragraphs 1.2 and 1.3 below, the Property shall be restricted to single-family detached residential uses on individual lots containing an average lot size of 144,000 square feet (3.3 acres) and a minimum lot size of 65,340 square feet (1.5 acres). Except for lot size, the development standards for residential development under the Town's R-80 zoning classification shall apply to this area. The development standards and design guidelines of the Foothills Specific Plan (part III, beginning on page 25) shall not apply to this area of the Property. 1.2. Medium-Density Residential Area. Up to 35 acres (excluding road rights-of-way) of that portion of the Property lying south of the future Thornydale Road alignment and west of the Prospect Wash may consist of single-family detached residential uses on individual lots containing an average lot size of 16,000 square feet and a minimum lot size of 12,000 square feet. Not more than 95 residential units may be constructed in this area. The development standards for residential development under the Town's R-12 zoning classification shall apply to this area. The development standards and design guidelines of the Foothills Specific Plan (part III, beginning on page 25) shall not apply to this area of the Property. 1.3. Resort/Hotel, Commercial/Office and High Densitv Residential Area. Up to 55 acres of that portion of the Property lying west of the Prospect Wash and at least 200 feet away from any boundary of the Property may be used in a manner consistent with the development standards and design guidelines of the Foothills Specific Plan for "Residential: High Density (13-15 RAC)," "Commercial/Office" and "Resort/Hotel" uses (part III.D, E and F, respectively, beginning on page 32), except that the 25% maximum building coverage under the "Resort/Hotel" section (Foothills Specific Plan paragraph III.F.2.a.(1)) shall not apply and that the provision under the "Resort/Hotel" section providing for "theme towers to seventy-five (75) feet" (Foothills Specific Plan paragraph III.F.2.a.(4)) shall be modified to read "theme towers {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 2 - 12/1/20063:12 PM 1 I~~i !r::] I'U ill"l ~l lt~) ~"". ~;:~: ,~~t. ~""" ij""! ,Iii and other architectural features to sixty (60) feet." Ifthe Developer chooses to use any portion of this property for single-family detached residential uses within this area, they shall be on individual lots containing an average lot size of 16,000 square feet and a minimum lot size of 12,000 square feet, as provided in paragraph 1.2 above. 1.4. Determination of Average Lot Size. For purposes of this Article, average lot sizes are determined during the subdivision process by dividing the total gross acreage of the subdivision (including without limitation the area of all roads, common areas, lots and open space) by the number of lots in the subdivision. 1.5. Interpretation of the Development Regulations. If there is any inconsistency between the terms and provisions of the Marana Land Development Code and this Agreement, the terms and provisions of this Agreement shall prevail. Article 2. Environmental Sensitivity and Site Disturbance 2.1. Site Disturbance Restriction. The Developer shall disturb no more than 155 acres, (approximately 40% of the Property, after dedication of the Thornydale Road right-of-way). For purposes of this requirement, disturbed areas shall include, without limitation, any disturbance associated with emergency access, above-ground or underground utilities, easements, onsite roadways, constructed drainageways, homesites, driveways, landscaping, or any other development activity that will occur or has already occurred on the Property. Without limiting the definition of what shall not be considered disturbed areas for purposes of this requirement, Town-approved un-surfaced pedestrian recreational trails within undisturbed natural open space areas shall not be considered disturbed areas for purposes of this requirement. The land dedicated for the future Thornydale Road right-of-way shall also be excluded for purposes of determining the area of disturbance. 2.2. Identification of Undisturbed Areas. Before the issuance of any grading permit or other approval that would otherwise allow the Developer to remove vegetation from the Property, the Developer shall identify the portions of the Property anticipated to remain in their undisturbed natural state with such maps or other documentation as are reasonably acceptable to the Town. As development and development approvals occur for the Property, the specific locations of undisturbed natural areas, and the maps or other documentation associated with it, may be modified with the written reasonable consent of the Town, provided that the Developer shall at all times remain in compliance with paragraph 2.1 above. 2.3. Protection of Undisturbed Areas During Construction. The Developer shall install construction fencing to assure that all areas required to remain in their undisturbed natural state are protected during construction. Except as specifically modified by the terms of this Agreement, the Developer shall comply with all Town grading requirements. 2.4. Permanent Maintenance of Undisturbed Natural Areas. With the exception of recreational trails constructed in undisturbed natural areas as provided in paragraph 2.1 above, undisturbed natural areas set aside as required by this Article shall be permanently maintained in their undisturbed natural state. 2.5. Ownership and Control of Undisturbed Natural Areas. Not later than when construction begins on the last substantial phase of the Property's development, (i) one or more homeowners associations established by declarations of restrictive covenants recorded over all or part of the Property or (ii) a government or conservation entity the Town reasonably determines {00003192.DOC / 2} FOOTH~LSDEVELOPMENTAGREEMENT - 3 - 12/1/20063: 12 PM J 1~1':!i ,,::, ~:I! ,t~ I~I .,JI 111jl il:::1,' ',",. jl':~i, i J!!::: q"'11 !~~]; is willing and able to permanently maintain the undisturbed natural areas as required by this Article, shall be given: 2.5.1. Enforcement authority over and control of all undisturbed natural areas set aside and maintained as required by this Article; and 2.5.2. Permanent ownership of all undisturbed natural areas set aside and maintained as required by this Article that are located outside the boundaries of individually-owned residential lots. 2.6. Compliance with State and Federal Laws and Regulations. No approval, permit or authorization of the Town authorizes the Developer to violate any applicable federal or state laws or regulations, or relieves the Developer from the responsibility to ensure compliance with all applicable federal and state laws and regulations, including but not limited to the Endangered Species Act and Clean Water Act. Article 3. Development Plans. 3.1. Development Review. The Property shall be developed in a manner consistent with the Development Regulations, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for the Property. Upon the Developer's compliance with the applicable development review and approval procedures and substantive requirements of the Development Regulations, the Town agrees to issue such permits or approvals for the Property as may be requested by the Developer. 3.2. Development Conditions. The Developer agrees to fulfill all conditions and requirements for the Property outlined in the Development Regulations. 3.3. Plat. The Developer may submit and the Town shall approve a subdivision plat for all of the Property as long as it meets the requirements of the Development Regulations. 3.4. Archaeological/Historic Resources. Development of the Property shall meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code related to archeological and historic resources. 3.5. Site Built Construction and Building Permits. All construction on any portion of the Property, whether sold in bulk or individually, whether subdivided or not, shall be site-built and shall require building permits. Article 4. Infrastructure. 4.1. Thomydale Road Dedication. The master block plat for the Property or, if there is none, each subdivision and development plan that fronts on or includes the Thomydale Road extension shall dedicate to the Town a 150-foot right-of-way width for the Thomydale Road extension connecting West Heritage Club Boulevard on the west boundary of the Property to the existing Thomydale Road right-of-way on the east boundary of the Property. The Developer shall not be obligated to obtain the dedication of any road right-of-way outside the boundaries of the Property. 4.2. Thomvdale Road Improvements. The Developer shall construct the Thomydale Road extension as an all-weather public roadway within the right-of-way dedicated pursuant to paragraph 4.1 above, in a manner consistent with the Town's standard roadway cross-section for an urban collector road. In addition, the Developer shall construct two-lane, paved (asphaltic concrete over aggregate base course at thicknesses determined by a Town-approved geotechnical {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 4 - 12/1/20063:12 PM t "~om I~:i" :~'~ ,~l ~::ll ~\~ ~."' i~;;~i Ir'!~i ,Ii", d'"'' ij~i!l ~"II report), all-weather access from where the Thomydale Road extension improvements constructed pursuant to the preceding paragraph end at the boundaries of the Property to the then-existing paved public roadways east and west of the Property. The specific design of these roadway improvements shall be consistent with a Master Traffic Analysis to be prepared by the Developer and approved by the Town. The roadway construction required by this paragraph shall be completed before the Town issues a certificate of occupancy for any non-residential structure or before the Town releases assurances for any residential subdivision for the "Resort/Hotel, Commercial/Office and High Density Residential Area" (see paragraph 1.3 above), whichever first occurs. Before approving a final inspection on any residence in the areas of the Property addressed by paragraphs 1.1 or 1.2 above, the residence must be connected via paved roadway to the Town's paved public roadway system. 4.3. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the Property, the Developer shall have completed or shall provide evidence to the Town's satisfaction that Developer has made a diligent effort to complete the process of having the Property annexed into the Northwest Fire District. 4.4. V oluntarv Contribution in Lieu of School Land Dedication. Developer shall contribute a School Improvement Contribution Fee of $1,200 per single-family detached residential lot, payable to the Marana Unified School District. The School Improvement Contribution Fee shall be due and payable at the issuance of the building permit for each single- family detached residential unit. 4.5. Potable Water Service. The Town acknowledges the existence of that certain Water Service Agreement entered into between Lawyer's Title of Arizona, Inc. Trust Nos. 7804-T and 7805- T (Dove Mountain) and the City of Tucson which provides for the service of potable water to the Property, and will not condition approval of Developer's subdivision, development plan or building permit applications upon the use of potable water supplied by the Town or upon the use of non-potable water for any portion of the Property before or after it is developed. Article 5. Public Infrastructure Financing The Town staff shall process a Developer request to form a community facilities district to finance public infrastructure improvements pursuant to A.R.S. S 48-701, et seq. and the Town's Guidelines for Establishment of Community Facilities Districts, and the Town Council shall reasonably consider such request for a community facilities district. Article 6. Proposition 207 Waiver Developer hereby waives any claim it may have (if any) under the Private Property Rights Protection Act adopted by initiative in 2006 as "Proposition 207," including specifically but without limitation any potential claim under A.R.S. S 12-1134, for any change or reduction in the Developer's right to use, divide, sell or possess the Property resulting from this Agreement. Article 7. Cooperation and Alternative Dispute Resolution. 7.1. Appointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the Development, the Town and the Developer each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Developer. The initial representative for the Town (the "Town Representative") shall be the Town's Planning Director, and the initial representative for the Developer shall be James Horvath or a replacement to be selected by the Developer. The representatives shall be available {00003192.DOC / 2} FOOTHiLLS DEVELOPMENT AGREEMENT - 5 - 12/1/20063: 12 PM l tf'j; ,~.. :~:~ ,I:! 1:::11 ~:;~ I"~': ,,,...I, 111::111 '~!!:; f""j 11~:;pll .~ at all reasonable times to discuss and review the performance of the Parties to this Agreement and the development of the Property. 7.2. Timing. The Town acknowledges the necessity for prompt review by the Town of all plans and other materials (the "Submitted Materials") submitted by the Developer to the Town hereunder or pursuant to any zoning procedure, permit procedure, or other governmental procedure pertaining to the development of the Property and agrees to use its best efforts to accomplish such prompt review of the Submitted Materials whenever possible. 7.3. Default; Remedies. If either Party defaults (the "Defaulting Party") with respect to any of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party") shall be entitled to give written notice in the manner prescribed in Article 8 to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected. The Defaulting Party shall then have (i) twenty days from the date of the notice within which to correct the default if it can reasonably be corrected by the payment of money, or (ii) thirty days from the date of the notice to cure the default if action other than the payment of money is reasonably required, or if the non-monetary default cannot reasonably be cured within sixty days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to completion. If any default is not cured within the applicable time period set forth in this paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration proceedings set forth in paragraphs 7.4 and 7.5 below. The Parties agree that due to the size, nature and scope of the Property's development contemplated by this Agreement, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to Developer's development and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific performance will likely be appropriate for the enforcement of this Agreement. This paragraph shall not limit any other rights, remedies, or causes of action that either party may have at law or in equity. 7.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a forty-five 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 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 nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 7.5. Arbitration. After mediation (paragraph 7.4 above) any dispute, controversy, claim or cause of action arising out of or relating to this Agreement shall be settled by submission of the matter by both Parties to binding arbitration in accordance with the rules of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. S 12-501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. {00003192.DOC / 2} FOOTHILLS DE VELOPMENT A GREEMENT - 6 - 12/1/20063:12 PM ,l :~;:~: :~::~ ,{I I~::~ ''''''~ ~il ~'I~ ,,,~~I ~ij: ~;::II ~;~:~ Article 8. Protected Development Rights To ensure reasonable certainty, stability and fairness to the Developer and the Town for a reasonable period of time, the Developer and the Town agree that the zoning designations, uses, and densities that now apply to the Property, as amended by this Agreement, shall remain in effect and shall not be changed for a period of seven years after the execution of this Agreement without the agreement of the Developer. Article 9. Development Impact Fee Credits As provided in A.R.S. S 9-463.05, the Developer shall be entitled to development impact fee credits for the value of any land Developer contributes, the amount of any voluntary fees the Developer pays, and the construction cost of any improvements the Developer makes toward public services or infrastructure for which the Town currently has or in the future adopts a development impact fee. Without limiting the foregoing, credit against future Town roadway impact fees shall be given for the value of right-of-way dedicated by the Developer pursuant to paragraph 4.1 above and the cost of any permanent Thornydale Road improvements constructed by the Developer pursuant to paragraph 4.2 above. Article 10. General Terms and Conditions. 10.1. Manner of Serving. All notices, filings, consents, approvals and other communications provided for in or given in connection with this Agreement shall be validly given, filed, made, transmitted or served if in writing and delivered personally or sent by registered or certified United States mail, postage prepaid, if to (or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner): To the Town: Town OF MARANA Town Manager 11555 West Civic Center Drive Marana, Arizona 85653 To the Developer: TAPESTRY PROPERTIES III, L.L.C. c/o Town West Realty, Inc. 2285 West Ina Road, Suite 111 Tucson, Arizona 85741 With a copy to: George Constantini 10590 North Shannon Road Tucson, Arizona 85742 t If'''~ ,'u:. ~:ll ,1::1 !~l; 10.2. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. ~:;l I~:::" ',,,1 I~!I ':!!~: f,,1 ':::~ {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 7 - 12/1/20063: 12 PM 10.3. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right or remedy, and no waiver by the Town or the Developer of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 10.4. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any breach or default of this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys' fees by the other Party, in an amount determined by the court and not by the jury. 10.5. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 10.6. Headings and Recitals. The descriptive headings of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. The Recitals set forth at the beginning of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here. 10.7. Further Acts. Each of the Parties shall execute and deliver all documents and perform all acts as reasonably necessary, from time to time, to carry out the matter contemplated by this Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by the Developer and its successors. 10.8. Future Effect. 10.8.1. Time Essence and Successors. Time is of the essence of this Agreement. All of the provisions of this Agreement shall inure to the benefit of and be binding upon the successors, assigns and legal representative of the Parties, except as provided in paragraph 10.8.2 below. Notwithstanding the foregoing, to the extent permitted by law, the Developer's rights under this Agreement may only be assigned by a written instrument and recorded in the Official Records of Pima County, Arizona, expressly assigning such rights, and no obligation of the Developer under this Agreement shall be binding upon anyone owning any right, title or interest in the Property unless such obligation has been specifically assumed in writing or unless otherwise required by law. In the event of a complete assignment by Developer of all rights and obligations of Developer under this Agreement, Developer's liability under this Agreement shall terminate effective upon the assumption of those liabilities by Developer's assignee. 10.8.2. Termination Upon Sale to Public. It is the intention of the Parties that although recorded, this Agreement shall not create conditions or exceptions to title or covenants running with the land, unless specifically noted above. Nevertheless, in order to alleviate any concern as to the effect of this Agreement on the status of title to any of the Property, this Agreement shall terminate without the execution or recordation of any further document or instrument as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the end purchaser or user and thereupon such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement. {00003I92.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 8 - 12/1/20063:12 PM l :~!!~ 1:11 ;" !::Ji ~:ll jf'''I' ;~ ,~.., '''''?' ,J ~;~I 10.9. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between the Developer and the Town. No term or provision of this Agreement is intended to, or shall be for the benefit of any person, firm, organization or corporation not a party to this Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement. 10.10. 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 request or appropriate to evidence or give effect to the provisions of this Agreement. 10.11. Imposition of Duty by Law. This Agreement does not relieve any party hereto of any obligation or responsibility imposed upon it by law. 10.12. 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. 10.13. Amendments to Agreement. No change or addition shall be made to this Agreement except by a written amendment executed by the Parties. The Parties agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in this Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense of the Party requesting the amendment. 10.14. Names and Plans. The Developer shall be the sole owner of all names, titles, plans, drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at any time developed, formulated or prepared by or at the instance of the Developer in connection with the Property or any plans; provided, however, that in connection with any conveyance of portions of the infrastructure as provided in this Agreement such rights pertaining to the portions of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to the appropriate governmental authority. 10.15. Good Standing; Authority. The Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of Arizona and is authorized to do business in the state of Arizona. The Town represents and warrants to the Developer that it is an Arizona municipal corporation with authority to enter into this Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is sIgnmg. 10.16. Severability. If any provision of this Agreement is declared void or unenforceable, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. If a law or court order prohibits or excuses the Town from undertaking any contractual commitment to perform any act under this Agreement, this Agreement shall remain in full force and effect, but the provision requiring the act shall be deemed to permit the Town to act at its discretion, and if the Town fails to act, the Developer shall be entitled to terminate this Agreement. 10.17. 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 {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 9 - 12/1/20063:12 PM l 11~"j ,lIli~, : '~::I.I "u I~:I ~""~' ,:ll ~:;~ ~"., ,.::J; 'r"~ l~!i", ~"" ,I ~l, 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 7.5 above, requiring disputes to be resolved by binding arbitration. 10.18. Interpretation. This Agreement has been negotiated by the Town and the Developer, and no party shall be deemed to have drafted this Agreement for purposes of construing any portion of this Agreement for or against any party. 10.19. Recordation. The Town shall record this Agreement in its entirety in the office of the Pima County Recorder no later than ten days after it has been executed by the Town and the Developer. 10.20. No Developer Representations. Except as specifically set forth in this Agreement, nothing contained in this Agreement shall be deemed to obligate the Town or the Developer to complete any part or all of the development of the Property. 10.21. Approval. If any Party is required pursuant to this Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. 10.22. Force Maieure. If any Party shall be unable to observe or perform any covenant or condition of this Agreement by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Agreement so long as such Party shall use its best effort to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition can be cured within a reasonable amount of time and the payment of a reasonable amount of money. "Force majeure," as used in this paragraph, means any condition or event not reasonably within the control of such party, including without limitation, "acts of God," strikes, lock-outs, or other disturbances of employer/employee relations; acts of public enemies; orders or restraints of any kind of government of the United States or any state thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; natural disasters; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of people; explosions; and partial or entire failure of utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing Party or Parties, in either case when such course is in the judgment of and unfavorable to a Party shall not constitute failure to use its best efforts to remedy such a condition. 10.23. Conflict oflnterest. This Agreement is subject to A.R.S. S 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. [The remainder of this page is intentionally left blank.] 11 ll'!'~ ,~.. ~:.il ,d !ei ~::~I !:ll frl'~! ':~i:' ,0 :~i~ {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 10- 12/1/20063: 12 PM IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: THE TOWN OF MARANA, an Arizona municipal corporation By: U~ Ed Honea, Mayor Date: ~ec,~/'V"'.'be.r 5 j d-CJ\J{; , ATTEST: DEVELOPER: TAPESTRY PROPERTIES III, L.L.c., an Arizona limited liability company By: Foothills Marana, L.L.C., an Arizona limited liability company, a Member By: Town West Re~aty, In., an Ariz na corporation, it Mager By: ~ G J , Title: Date: ~ J. I ~oo6 By: Georgio L.L.C., an Arizona limited liabilit~ ompany, a Me ber Date: /2 L antml, ~ger and 0]1, C - () - O.{; By: Future of New Mexico, L.P., a Delaware limited partnership, a Member By: I?~~~ ~ Peter Fasseas, General Partner Date: '0 eC-. f I 2 00 &, , I Iq, ,~'" It"l" '~H' ,I::. it"" ,,,,'11 11\;~ It:::" ',,,,1' If'''! 'llii:" ~O:I~ii ,~ ::~~: {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT 12/1/20063:12 PM - 11 - STATE OF ARIZONA ) ss County of Pima ) The foregoing instrument was acknowledged before me on De:f.lLmber I , 2006, by -:r-aM~S (4. MDrllQ.Ut, as $t:-sl~ of Town West Realty, Inc., an Arizona corporation, as ManageI~' fFOO. thills Marana, L.L.C., an Arizona limited liability company, as a Member of T APEST.IR~O TIE.. s, III, L.L.C., an Arizona limited liability company, on behalf of the LLC. 6~v~ ",3 '00~~'b-f\~'" ~~ ... v rY.~(j ci:rJ;.rl> .. \ ^ My commISSIOn expIres: J:~:~fl.~~:,~".~,' l.J.. "n . '- .... ( t, - ~C>o '7 :';, '<~ c.P.:,/~v Notary PublIc --M2 - ~ _<-\,,,,'1>- <(/e'/ . CJ ~/Y ~~.. ~,~ 1/'" \" ~ '&'?Ji"'<'~~i: 2 ~~;. _",.<\j;v ~".'.' '~"".'\. L...SEA. L" I (;J.. Hockenbury :::!lc-Arizona "I ';nunty ~::~~~J"2~ ss STATE OF ARIZONA ) County of Pima ) The foregoing instrument was acknowledged before me on O(bCff.>fY\. kr 4- , 2006, by George Costantini, as the Manager and the Member of Georgio L.L.C., an Arizona limited liability company, a Member, as a Member of TAPESTRY PROPERTIES, III, L.L.C., an Arizona limited liability company, on behalf of the LLC. ss j~\ (lJ,\>>v ~b_~k~. Notary Public \j __~~?-'''-:v' .;\};2~4J"''f;OFf:rC!AL 'SEAL" &S '~.;. Trish AI.ln.HockenbUry ~ Ii. ~ Notary Pllb~ic.ArizCil'la t~ /i:' hl11a Co~nty , , ... ~~ ~ ~l!~~" Mv com(ni?s.\9i1X~~~\!?J.l~~1 "__~~;~"~",,.:.;;:,~~;';'e"''3<'~~ ;;;.o~..,.,:..;.",~., '. My commission expires: & - / C, -~DC>J STATE OF ARIZONA ) County of Pima ) The foregoing instrument was acknowledged before me on 'D~~Ioe..r l ,2006, by Peter Fasseas, as the General Partner of Future of New Mexico, L.P., a Delaware limited partnership, as a Member of TAPESTRY PROPERTIES, III, L.L.C., an Arizona limited liability company, on behalf of the LLC. My commission expires: to - (4 -dOG, ~~~~ Notary Public CJ 'I ~;~ !::l ,~:l ~:~I ~'lZ<?~;iE1-"'~I' " "OFFiCIAL SEAL" I Trish Ann Hockenbury . ) Notary Public-Arizona , l"lma County )~. '"t!-~>~ , ';;"11 E1(pires 5!; 9!2007 , ,. - - ,~~:c;~-,:'~1,-.r,:'-;:'~Y?@,;"3':::::<:!2" I~:l Ii:!: "~'I 11"11 ,:~ii~ ,il! ,/l {00003192.DOC / 2} FOOTHILLS DEVELOPMENT AGREEMENT - 12 - 12/1/20063: 12 PM