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HomeMy WebLinkAboutOrdinance 2014.007 Approve San Joaquin pre-annexation development agreement:1 M. F. ANN RODRIGUEZ, RECORDER Recorded By: JAL DEPUTY RECORDER 4916 SMARA TOWN OF MARANA PICKUP i V" 0 4 4" O `g1t1Z01`Zp SEQUENCE: NO. PAGES: ORDIN PICK UP AMOUNT PAID: MARANA ORDINANCE NO. 2014.007 20141010089 18 04/11/2014 9 :38 $13.50 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE SAN JOAQUIN PRE - ANNEXATION DEVELOPMENT AGREEMENT FOR THE PROPERTY LOCATED ON THE NORTH SIDE OF TWIN PEAKS ROAD BETWEEN TIFFANY LOOP AND THE CASA GRANDE HIGHWAY (I -10) WHEREAS the Marana Town Council finds that the San Joaquin Pre - Annexation Development Agreement is consistent with the Marana General Plan, applicable specific plans, and relevant Town policies; and WHEREAS the Marana Town Council finds that the San Joaquin Pre - Annexation Development Agreement is in the best interest of the Town and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The San Joaquin Pre - Annexation Development Agreement 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 San Joaquin Pre - Annexation Development Agreement 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 4th day of March, 2014. Mayor Ed Honea ATTEST: WWWROA I • ' I B ronson, Ordinance 2014.007 Ev ' HOW 2/11/2014 11:25 AM FJC �F SAN JOAQUIN PRE - ANNEXATION DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA THIS PRE - ANNEXATION DEVELOPMENT AGREEMENT (this "Agreement ") is made and entered into by and between the TowN of MARANA, an Arizona municipal corporation (the "Town "), and SAN JOAQUIN LAND INVESTMENTS, L.L.C., an Arizona limited liability company (the "Owner "). The Town and the Owner are sometimes collectively referred to as the "Parties," either one of which is sometimes individually referred to as a "Par- ty. " „ RECITALS A. The Owner is the current owner of a parcel of land located in an unincorporated island of Pima County, Arizona, at the northeast corner of the intersection of Twin Peaks Road and Tiffany Loop bearing Pima County Assessor's parcel number 226- 15 -015A and referred to in this Agreement as the "Owner's Land," depicted in Exhibit A and legally described in Exhibit B attached to and incorporated by this refer- ence in this Agreement. B. The Owner's Land is zoned "CB -2" General Business (the "Existing Zoning ") in Pima County, without conditions or restrictions. C. Subject to the terms and conditions of this Agreement, the Owner seeks an ordi- nance annexing the Owner's Land into the Town's municipal limits. D. Upon such annexation, the Town will apply a Town of Marana zoning designa- tion to Owner's Land (the "Town Equivalent Zoning ") that permits densities and uses no greater than those permitted by the Existing Zoning, consistent with the provisions of this Agreement. E. The Towns General Plan designates the anticipated future land use of the Own- er's Land as "Industrial," and some of the land in the vicinity of the Owner's Land is currently zoned for industrial uses. F. Immediately east of and adjacent to the Owner's Land, the Town owns a remnant of land located in unincorporated Pima County, Arizona at the northwest corner of the intersection of Twin Peaks Road and Interstate 10, depicted in Exhibit A attached to and incorporated by this reference in this Agreement, and referred to in this Agreement as the "Town Remnant Parcel." G. The Town Remnant Parcel was part of a larger parcel of land bearing Pima Coun- ty Assessor's parcel number 226 -15 -0130, acquired by the Town for the construction of 100029122.DOCX / 71 - 1 - 2/26/2014 7:39 PM FJC the Twin Peaks Traffic Interchange project pursuant to the Intergovernmental Agree- ment between the State of Arizona and the Town dated August 1, 2007, JPA File No. 06 -148 (the "Marana /ADOT IGA "). H. The Marana /ADOT IGA requires the Town to transfer to the Arizona Depart- ment of Transportation (ADOT) all highway right -of -way as designated in the Mara - na/ADOT IGA. I. The Town Remnant Parcel is the portion of Pima County Assessor's parcel num- ber 226 -15 -0130 remaining in the Town's ownership after transfer of highway right -of- way to ADOT pursuant to the Marana /ADOT IGA. J. The Owner may seek to acquire the Town Remnant Parcel through a competitive public bidding process, and if so, may choose to include the Town Remnant Parcel in a single unified development with the Owner's Land. K. The Town desires to consider annexing the Owner's Land in accordance with ap- plicable law and the terms and conditions of this Agreement. L. The Parties neither desire nor intend for this Agreement in any way to affect, hin- der, or interfere with the ability of the Town Council to approve or reject the ordinance to annex the Owner's Land. M. The Parties anticipate that the Owner will develop the Owner's Land and, if ap- plicable, the Town Remnant Parcel into a single unified development project containing one or more hotels, retail uses, fast food facilities, restaurants, appropriate signage and any other uses consistent with the Town Equivalent Zoning and this Agreement (the "Development "). N. The Town and the Owner desire to establish certain agreements regarding the Development pursuant to A.R.S. § 9- 500.05 and certain agreements in connection with development activities for the economic benefit of the Town pursuant to A.R.S. § 9- 500.11 upon and in accordance with the terms and conditions set forth in this Agreement. O. The Development is consistent with the Town's long -term economic develop- ment strategies and is expected to create a source of significant tax revenue for the Town for many years. P. The Development will have a substantial positive economic impact on the Town because it is expected to provide commercial and retail opportunities consistent with the businesses targeted by the Town. Q. The Development is in compliance with the Town's adopted and approved Gen- eral Plan (as defined in A.R.S. § 9 -461). R. The Town is authorized by A.R.S. § 9- 500.05 to enter into a development agree- ment with a landowner or other person or entity having an interest in real property located or to be located within the Town to facilitate development of the property by 100029122.DOCX / 7} -2- 2/26/2014 7:39 PM FJC providing for, among other things, the conditions, terms, restrictions, and requirements for development and public infrastructure and the financing of public infrastructure. S. In approving this Agreement, the Town Council has found and determined that certain activities relating to the Development are economic development activities with- in the meaning of A.R.S. § 9- 500.11, that all expenditures by the Town pursuant to this Agreement constitute the appropriation and expenditure of public monies for and in connection with economic development activities and that it is appropriate to provide the Owner with the reimbursement in this Agreement as an inducement to cause the Owner to construct, own and operate the Development in the Town. T. The Town adopted a notice of intent to enter into this Agreement not less than 14 days before the Town Council approved this Agreement, in compliance with A.R.S. § 9- 500.11. U. The Town Council finds that the Development will raise more revenue for the Town than the amount of the reimbursements to the Owner within the duration of this Agreement. V. An independent third party not financed by the Owner has verified (the "Eco- nomic Impact Verification ") the Town Council's finding that the Development will raise more revenue for the Town than the amount of the reimbursements to the Owner with- in the duration of this Agreement. W. The Town Council finds that in the absence of the reimbursements to the Owner provided pursuant to this Agreement, the Development would not locate in the Town in the same time, place or manner as it will with the reimbursements to the Owner. X. The Owner will incur out -of- pocket public infrastructure construction costs and will make certain contributions for public infrastructure in the immediate vicinity of and directly benefiting the Development. Y. The reimbursements to the Owner provided pursuant to this Agreement are in- tended to reimburse the Owner for its out -of- pocket public infrastructure construction costs and public infrastructure contributions and related interest and carrying costs, as described more specifically in this Agreement. AGREEMENT Now, THEREFORE, in consideration of the foregoing recitals, which are incorporated into this Agreement as though fully restated here, and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. Initiation of annexation process. Upon the Owner's request, the Town agrees to initi- ate proceedings to annex the Owner's Land and any other adjacent unincorporated lands the Town chooses to include into the Town's municipal limits, by recording a blank annexation petition, scheduling a public hearing on the annexation, and taking the other steps required by A.R.S. § 9 -471. This Agreement automatically terminates on 100029122.DOCX / 71 -3- 2/26/2014 7:39 PM FJC the first anniversary of the Town Council's adoption of the resolution approving this Agreement if by that time the Owner has failed to request the Town to initiate proceed- ings to annex the Owner's Land. This Agreement automatically terminates on the fifth anniversary of the Town Council's adoption of the resolution approving this Agreement if by that time this Agreement has not become operative (see paragraph 5 below). 2. Annexation ordinance consideration and adoption. The ordinance to annex the Own- er's Land shall not be scheduled on the Town Council's agenda for consideration of adoption until the Town has provided Owner with a copy of the Economic Impact Verification and the Owner has signed the annexation petition necessary for the consid- eration of the annexation ordinance (the "Annexation Ordinance "). When the Annexa- tion Ordinance is introduced for consideration by the Town Council, it will include a provision adopting an initial Town zoning classification of VC Village Commercial for the Owner's Land. VC Village Commercial allows uses and densities no greater than those permitted in Pima County, as provided in A.R.S. § 9- 471(L). In addition to the VC Village Commercial uses, the Annexation Ordinance will include "Conditional Uses Upon Annexation" permitted by the Town Council pursuant to Marana Land Devel- opment Code section 10.10, paragraph P, allowing certain specific uses and densities that exceed what is allowed in Town of Marana VC Village Commercial but that are permitted under the Pima County CB -2 zoning as it now applies to the Owner's Land. At a minimum, these "Conditional Uses Upon Annexation" shall include the following: (A) Motel or hotel, together with the following accessory uses located on the premises and having no exterior entrance closer than one hundred feet to a public street: (i) Retail shops, (ii) Personal services, (iii) Recreational facilities, (iv) Restaurant, (v) Beverage service (B) Auto parking lot (within or without a building) shall be permitted as an ac- cessory use to a hotel or other permitted use, subject to compliance with all applica- ble landscaping, bufferyard, and off - street parking and loading requirements set forth in the Marana Land Development Code. (C) Temporary uses of no longer than five years' duration may be permitted up- on receiving a Conditional Use Permit under Section 10.10 of the Marana Land De- velopment Code and in compliance with any requirements imposed as a condition of the Conditional Use Permit. 3. Owner's zoithdrawal from annexation. The Owner may withdraw from the annexa- tion at any time prior to the Town Council's adoption of the annexation ordinance. If 100029122.DOCX / 7} -4- 2/26/2014 7:39 PM FJC not timely rescinded by the Town Council or challenged by referendum, the annexation ordinance shall become effective 30 calendar days after its adoption by the Town Coun- cil in accordance with A.R.S. § 9-471. If there is sufficient time before the annexation ordinance becomes effective to satisfy legal notice requirements, the Town Council shall (by motion for reconsideration or other appropriate means) rescind the annexation ordinance if (a) the annexation ordinance is challenged by reconsideration or referen- dum and (b) the Owner requests that the annexation ordinance be rescinded. 4. No requirement to proceed. Nothing in this Agreement shall require the Owner to proceed with the annexation, or the development of the Owner's Land. 5. Term. This Agreement shall become effective as of the effective date of the resolu- tion of the Town Council approving the mutually executed Agreement (the "Effective Date'), and shall become operative on the effective date of the Annexation Ordinance. The term of this Agreement shall begin on the Effective Date and, unless sooner termi- nated by the mutual consent of the Parties or automatically terminated pursuant to paragraph 1 above, or as otherwise provided herein, shall automatically terminate and shall thereafter be void for all purposes on the earlier of (a) the 21st anniversary of the first reimbursement payment (see paragraph 17 below) or (b) the 24th anniversary of the Effective Date. 6. Proposed uses. The Development is a retail center planned to accommodate a range of differing but complementary retail- related land uses on an integrated and master - planned basis. Overall, the Development is expected to create substantial additional sales tax revenues for the Town, assist in the creation or retention of jobs and otherwise improve or enhance the economic welfare of the residents of the Town by bringing customers to the Development from the Town and surrounding communities. 7. Defcnitions. The following definitions shall apply to this Agreement: (A) "Construction Sales Tax Revenues' mean those portions of the Towns trans- action privilege taxes (currently 4 %) generated pursuant to Section 8 -415 or 8 -416 of the Marana Tax Code from construction contracting or speculative builder activities occurring as part of the Development. (B) The "Development" is defined in recital M above and described in para- graph 6 above. (C) "Development Regulations" is defined in paragraph 8 below. (D) "Interest" or "Interest Rate" means interest on the applicable obligation or sum (including the Total Reimbursement Amount) at the rate of 4.0% per annum, compounded quarterly on the first day of each calendar quarter. (E) The "Owner's Land" is defined in recital A above. (F) "Public Improvements" means the following types of public infrastructure serving the Development: 100029122.DOCX / 7) -5- 2/26/2014 7:39 PM FJC (i) Public sewer improvements. (ii) Public water improvements. (iii) Public transportation improvements. (iv) Public drainage improvements. (G) "Public Improvement Costs" means all costs, expenses, fees, transaction priv- ilege taxes and charges actually incurred and paid by or on behalf of the Owner to contractors, architects, engineers, surveyors, governmental agencies, other profes- sionals and consultants, and other third parties for materials, labor, planning, de- sign, engineering, surveying, site excavation and preparation, governmental permits and payments, payment and performance bonds, other professional services, and all other costs and expenses related or incidental to and reasonably necessary for, the acquisition, improvement, construction, installation, or provision of the Public Im- provements, together with all costs associated with the acquisition of lands, rights - of -way and easements either to be dedicated to the Town or upon which Public Im- provements are to be constructed, with Interest as provided in this Agreement. (H) "Reimbursement Account" means a separate account within the Town's General Fund or accounted for by an appropriate book or ledger entry designation for the purpose of making Reimbursement Payments (see paragraph 17 below) (I) "Reimbursement Payments" is defined in paragraph 17 below. (J) "Sales Tax Revenues" means that portion of the Town's transaction privilege taxes (currently 2 %) generated from the following activities occurring within the Development: (i) Amusements, exhibitions and similar activities pursuant to Section 8 -410 of the Marana Tax Code. (ii) Hotels pursuant to Section 8 -444 of the Marana Tax Code. (iii) Rentals pursuant to Section 8 -445 of the Marana Tax Code. (iv) Restaurants and bars pursuant to Section 8 -455 of the Marana Tax Code. (v) Retail sales pursuant to Section 8 -460 of the Marana Tax Code. References to sections of the existing Marana Tax Code shall include correspond- ing sections of successor codes. 8. Development regulations. The Marana Development Code, including the written rules, regulations, substantive procedures, and policies relating to development of land, adopted or approved by the Mayor and Council (collectively the "Marana Development Code ") in effect on the Effective Date shall apply to the extent not covered by this Agreement. In the event of any express conflict, the Marana Development Code shall control over the terms of this Agreement. Notwithstanding anything in this Agreement, {00029122.DOCX / 71 -6- 2/26/2014 7:39 PM FJC. or the Marana Development Code to the contrary, no future ordinance, rule, regulation, standard or policy adopted by the Town shall apply to any development occurring on the Owner's Land during the period ending on the fifth anniversary of the Effective Date unless: (A) The future rule or regulation has been enacted by the Town to comply with state or federal laws and regulations, provided that in the event the new rule or reg- ulation prevents or precludes compliance with this Agreement, such provision of this Agreement shall be modified as necessary in order to comply with the new rule or regulation; or (B) The future rule or regulation has been enacted by the Town to address a legit- imate health or safety issue and the implementation of such rule or regulation will not adversely affect the development and use of the Owner's Land. 9. Development review. The Development shall be developed in a manner consistent with the Development Regulations and this Agreement, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for the Development. Upon the Owner'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 Development as may be requested by the Owner. Notwithstanding anything herein to the contrary, the Town acknowledges that the Owner has heretofore provided the Town with (i) that letter decision from Suzanne Shields, P.E., Director and Chief Engineer of the Pima County Regional Flood Control District dated October 6, 2010 determining that Owner's Land is not subject to Important Riparian Areas and riparian habitat, and (ii) that correspondence from Bill Zimmerman, Manager, Planning and Development Division of the Pima County Regional Flood Control District dated Au- gust 24, 2010 waiving detention/ retention requirements under the Pima County Code with respect to the development of Owner's Land (collectively, the "PCRFCD Determi- nations") and the Town acknowledges and agrees that the PCRFCD Determinations are sufficient to satisfy any similar riparian and detention/ retention requirements under the Town's current Development Regulations as of the Effective Date. 10. Phasing. Owner shall be entitled to determine the development phases for the Property and the order in which the phases will be completed. Owner shall also be entitled to determine the timing for the design, construction and installation of the Public Improvements, in accordance with the terms and conditions of this Agreement, subject to the Town's customary development requirements regarding development of other property located within the Town. 11. Public improvements construction and reimbursement. As a condition precedent to receiving Reimbursement Payments under paragraph 17 of this Agreement, and not as a separate contractual obligation, the Owner shall, in conjunction with its construction 100029122.DOCX / 71 -7- 2/26/2014 7:39 PM FJC of the Development and in accordance with Arizona Revised Statutes Title 34 pertain- ing to public infrastructure construction procurement laws and procedures: (A) Design and construct the Public Improvements; and (B) Pay all Public Improvement Costs as they become due. 12. Use of Town easements and riglits -of -way; right -of -way use permits. Owner and its agents shall have the right to enter, remain upon and cross over any Town easement or right -of -way to the extent reasonably necessary to design, construct or install the Public Improvements, provided that with alternative construction access as approved by Town, Owner's use does not unreasonably impede Towns use and enjoyment of the subject property; and provided that Owner shall obtain any required permit for the use of such easement or right -of -way, as required by Town, and provided also that the Owner obtaining such permit shall restore such easement or right -of -way to substantial- ly the same condition as existed prior to Owner's entry. 13. Water service. The Owner's Land is within a geographic area where water service will be available from the Town upon annexation and installation of necessary water infrastructure. Upon annexation and installation of necessary water infrastructure, the Town shall provide water service to the Owner's Land. 14. Reimbursement amount. The Town shall make Reimbursement Payments to the Owner for: (A) The Owner's Public Improvement Costs. (B) Interest shall accrue on any unreimbursed portion of the Owner's Public Im- provement Costs at the Interest Rate from and after the later of (i) the commence- ment of construction of the Public Improvements and (ii) the first deposit of Sales Tax Revenues into the Reimbursement Account (see paragraph 15 below). This ac- crued interest on the Owner's Public Improvement Costs shall be a portion of the Reimbursement Payments in paragraph 17 below. The Owner shall submit to the Town a quarterly statement showing the actual construction costs incurred and con- tributions paid to date for the Public Improvements. The Owner shall provide the Town with invoices or other backup information reasonably requested by the Town to confirm the accuracy of the Owner's quarterly statement of costs and contribu- tions. 15. Reimbursement account. The Town shall deposit into the Reimbursement Account 45% of the Sales Tax Revenues (see paragraph 7(J) above) as they are received from the Arizona Department of Revenue, beginning with the first such revenues generated from the Development and ending upon the expiration of this Agreement. Funds in the Re- imbursement Account shall be reimbursed to the Owner pursuant to paragraph 17 below. 100029122.DOCX / 7} -8- 2/26/2014 7:39 PNi FJC. 16. No reimbursement out of Construction Sales Tax Revenues. No portion of any reim- bursement under this Agreement shall consist of Construction Sales Tax Revenues (see paragraph 7(A) above). 17. Reimbursement Payments. The Town shall pay to the Owner within the first 45 days of each calendar quarter all funds in the Reimbursement Account ( "Reimburse- ment Payments "), beginning the first calendar quarter after the Town's receipt of Sales Tax Revenues (see paragraph 7Q) above) generated by the Development. Any funds accrued in the Reimbursement Account but not yet disbursed to the Owner upon the expiration of this Agreement shall be paid to the Owner within 30 days after the expira- tion of this Agreement. 18. Owner audit. Not more than once each calendar year, the Owner may, at its own cost, audit Town sales tax returns and other appropriate financial records of the Town to assure prompt and accurate deposit into the Reimbursement Account of all revenues as required pursuant to this Agreement. The Owner audit authorized by this paragraph shall be subject to all applicable laws that may prohibit or limit the dissemination or use of transaction privilege tax and related information. Before the Owner audit occurs, the Owner shall obtain and provide to the Town written waivers of confidentiality suffi- cient to satisfy the requirements of Arizona Revised Statutes § 42- 2003(A)(6) from each taxpayer whose sales tax returns and other financial records are provided by the Town in connection with the audit. 19. Annual report. Within 45 days following the end of each Town fiscal year, the Town shall deliver to the Owner a report of all Sales Tax Revenues generated by or attributable to the Development which have been utilized by the Town in determining the amount deposited into the Reimbursement Account. The report shall be restricted to information that may be released by the Town without violating applicable laws that may prohibit or limit the dissemination or use of transaction privilege tax and related information. The report will not contain information capable of identifying confidential information of any particular taxpayer unless and until the Owner has obtained and provided to the Town written waivers of confidentiality sufficient to satisfy the re- quirements of Arizona Revised Statutes § 42- 2003(A)(6) from each taxpayer whose confidential information is revealed in the report. 20. Limitations. During the Term of this Agreement, the Town shall not enter into any agreement or transaction which impairs the rights of the Owner under this Agree- ment, including, without limitation, the right to receive the Reimbursement Payments and the proceeds of the Reimbursement Account in accordance with the procedures established in this Agreement. 21. Multiple business locations; release of tax information. Since some businesses with multiple locations in the Town report their transaction privilege taxes on the basis of revenues for all their locations in the Town, rather than separately for each location, the Owner shall request each such business to separately report transaction privilege taxes {00029122.DOCX / 7} -9- 2/26/2014 7:39 PM FJC. for transactions at its business located in the Development. The Owner shall exercise reasonable efforts to obtain from all businesses in the Development a consent to release of tax information in a form reasonably acceptable to the Town. If the separate report required by this paragraph is not provided to the Town, the Town shall make a reason- able estimate of the Sales Tax Revenues derived from the Development based on all information available to the Town, including information provided by the Owner, and the good faith certification by the Towns Finance Director shall be considered final and binding upon the Owner. The final certification of the Town's Finance Director shall be subject to all applicable laws that may prohibit or limit the dissemination or use of transaction privilege tax and related information. 22. Town review and approval of plans. Except as expressly provided in this Agree- ment, the development and construction of the Public Improvements is subject to the Town's normal plan submittal, review and approval procedures and construction in- spection requirements. The Town acknowledges that timely reviews, inspections and approvals by the Town are necessary to effectuate the development of the Owner's Land. The Town agrees to use its reasonable best efforts to promptly initiate all review, inspection and approval processes in accordance with the Towns adopted regulations. Additionally, the Town may retain independent consultants, reviewers, inspectors and advisors at Owner's request in order to efficiently continue the review, inspection and approval process. The Owner shall pay all costs incurred by the Town for any private, independent consultants, reviewers, inspectors and advisors retained by the Town, at Owner's request, for assistance in the review, inspection and approval process, and such consultants, reviewers, inspectors and advisors shall take instruction from, be controlled by and be responsible to the Town, not the Owner. 23. Development impact fees. Nothing in this Agreement shall be construed as a waiver or reduction of development impact fees properly adopted by the Town pursuant to A.R.S. § 9- 463.05 and applicable to the Development. 24. Proposition 207 Waiver. On or before the Annexation Ordinance is placed on the Town Council's agenda for consideration of adoption, the Owner shall provide to the Town a completed "Proposition 207 Waiver" applicable to the Annexation Ordinance in form acceptable to the Town Attorney. The Town will record the Proposition 207 Waiv- er in the office of the Pima County Recorder after the Town Council adopts the Annexa- tion Ordinance. The Proposition 207 Waiver will not be recorded and will be void and of no effect if the Annexation Ordinance is not adopted. If the Annexation Ordinance is rescinded, repealed or otherwise of no effect, the Parties shall take such steps as are required to release or rescind the Proposition 207 Waiver. 25. Cooperation and alternative dispute resolution. (A) Appointment of representatives. To further the commitment of the Parties to co- operate in the progress of the Development, the Town and the Owner each shall des- ignate and appoint a representative to act as a liaison between the Town and its var- {00029122.DOCx / 7) _10- 2/26/2014 7:39 PM FJC ious departments and the Owner. The initial representative for the Town (the "Town Representative ") shall be the Town Manager, and the initial representative for the Owner shall be Eddie Leon or a replacement to be selected by the Owner. The repre- sentatives shall be available at all reasonable times to discuss and review the per- formance of the Parties and the Development. (B) Non- performance; remedies. If either Party does not perform under this Agree- ment (the "Non- Performing Party ") with respect to any of that Party's obligations under this Agreement, the other Party (the "Demanding Party ") shall be entitled to give written notice in the manner prescribed in paragraph 26 below to the Non - Performing Party, which notice shall state the nature of the non- performance claimed and make demand that such non - performance be corrected. The Non - Performing Party shall then have (i) 20 days from the date of the notice within which to correct the non- performance if it can reasonably be corrected by the payment of money, or (ii) 30 days from the date of the notice to cure the non- performance if ac- tion other than the payment of money is reasonably required, or if the non - monetary non - performance cannot reasonably be cured within thirty days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within thirty days and thereafter diligently prosecuted to completion. If any non - performance is not cured within the applicable time period set forth in this paragraph, then the Demanding Party shall be entitled to begin the mediation and arbitration proceedings set forth in this paragraph 25. The Parties agree that due to the size, nature and scope of the Development, and due to the fact that it may not be practical or possible to restore the property to its condition prior to Owner's devel- opment and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific per- formance will likely be appropriate for the non - performance of a covenant contained in this Agreement. This paragraph shall not limit any contract or other rights, reme- dies, or causes of action that either Party may have at law or in equity. (C) Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a 45 -day moratori- um on arbitration during which time the Parties agree to attempt to settle the dis- pute by nonbinding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration As- sociation. The matter in dispute shall be submitted to a mediator mutually selected by the Owner and the Town. If the Parties cannot agree upon the selection of a me- diator within seven days, then within three days thereafter the Town and the Owner shall request the presiding judge of the Superior Court in and for the County of Pi- ma, 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 Owner. The results of the mediation shall be nonbinding {00029122.DOCX / 71 - 11 - 2/26/2014 7:39 PM FJC on the Parties, and any Party shall be free to initiate arbitration after the moratori- um. (D) Arbitration. After mediation, as provided for in this paragraph 25, any dis- pute, controversy, claim or cause of action arising out of or relating to this Agree- ment shall be settled by submission of the matter by both Parties to binding arbitra- tion in accordance with the rules of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. § 12 -501 et sect., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. 26. Notices. All notices, requests and other communications under this Agreement shall be given in writing and either (i) personally served on the party to whom it is given, or (ii) mailed by registered or certified mail, postage prepaid, return receipt re- quested, or (iii) sent by private overnight courier such as Federal Express or Airborne, or (iv) transmitted by facsimile (provided that a confirming copy of the facsimile trans- mission is mailed on the date of such transmission), addressed as follows: If to the Town: TOWN OF MARANA 11555 W. Civic Center Drive, Bldg. A3 Marana, AZ 85653 -7006 Phone: (520) 382 -1900 Facsimile: (520) 382 -1901 If to the OWNER: SAN JOAQUIN LAND INVESTMENTS, L.L.C. P.O. Box 795 Sells, AZ 85634 Attention: Richard L. Grijdlva, Manager Phone: (520) 383 -2900 Facsimile: (520) 383 -2652 E -Mail: rgrijalva @toua.net WITH A COPY TO: QUARLES & BRADY LLP 1 S. Church Avenue, Suite 1700 Tucson, AZ 85701 Attention: Troy M. Hoch, Esq. Phone: (520) 770 -8714 Facsimile: (520) 770 -2226 E -Mail: troy.hoch @quarles.com {00029122.DOCX / 71 -12- 2/26/2014 7:39 PM FJC Eddie Leon 3504 E. Calle del Prado, Tucson Tucson, Arizona 85716 Phone: (520) 907 -2498 E -Mail: ealeon @prodigy.net All notices shall be deemed given when delivered or transmitted by facsimile or, if mailed as provided above, on the second day after the day of mailing, and if sent by overnight courier, on the next day after the date of deposit with the courier. Any party may change its address for the receipt of notices at any time by giving written notice thereof to the other parties in accordance with the terms of this section. The inability to deliver notice because of a changed address of which no notice was given, or rejection or other refusal to accept any notice, shall be deemed to be the effective receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. 27. Miscellaneous. (A) This Agreement may not be modified except in a writing signed by the Par- ties. (B) Time is of the essence of this Agreement. (C) This Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona, and any lawsuit to enforce any provision of this Agreement or to obtain any remedy with respect to this Agreement shall be brought in the Pima County Superior Court, and for this purpose the Parties expressly and irrevocably consent to the jurisdiction of the Pima County Superior Court. (D) If either of the Parties fails to perform any of its obligations under this Agreement or if a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the defaulting party or the party not prevailing in the dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party in enforcing or establishing its rights under this Agreement, including, without limitation, court costs and reasonable attorneys' fees. (E) This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original and all of which, taken together, shall constitute one and the same agreement. (F) This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors in interest and assigns; provided, however, that no assignment of this Agreement shall in any way relieve the assignor of its obligations under this Agreement. (G) This Agreement is subject to A.R.S. § 38 -511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 100029122.DOCX / 7} -13- 2/26/2014 7:39 PM FJC IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the last date set forth below their respective signatures. THE "TOWN ": The "OWNER ": TOWN OF MARANA, an Arizona SAN JOAQUIN LAND I NvESTMENTS, L.L.C., municipal cor orati an Arizona limited liability company _ �V By: By: r Ed Honea; Mayor Richard L. Grijdlva, Member Man - Date: 3 `�— �'� ager Date: �' ! ATTEST: I �WAZ mm - � 17i - As To FO RM: y, Town A STATE OF ARIZONA) ) ss County of Pima ) The foregoing instrument was acknowledged before me on 201 by Richard L. Grijdlva, Member Manager of SAN JOAQUIN LAND INVESTMENTS, L.L.C., an Arizona limited liability company, on behalf of (Seal) '+ y Public state of Arizona Pirna county Joy D Taylor My Can Minn Expires 0=712015 EXHIBITS Exhibit A Depiction of the "Owner's Land" and the "Town Remnant Parcel" Exhibit B Legal description of the "Owner's Land" {00029122.DOCX / 71 -14- 2/26/2014 7:39 PM FIC Exhibit A TO SAN JOAQUIN PADA 13 0 250 500 Feet EXHIBIT B TO SAN JOAQUIN PRE - ANNEXATION DEVELOPMENT AGREEMENT Legal Description t., of Twin Pees Property Et IC9IAW INN COMPANY THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 12 EAST, GILA AND SALT RIVER MERIDIAN, PIMA COUNTY, ARIZONA, AND THE PROPERTY THAT CONSISTS OF THE FOLLOWING VESTING DEEDS RECORDED AT THE PIMA COUNTY RECORDER'S OFFICE, DOCKET 7478 AT PAGE 78, DOCKET 7703 AT PAGE 413, DOCKET 7523 AT PAGE 1750 AND DOCKET 8889 AT PAGE 30, EXCEPT THAT PORTION IN DOCKET 8889 AT PACE 27, BEING DESCRIBED AS FOLLOWS: CCIIV MENCING.AT THE NORTHWEST CORNER OF SAID SECTION 22; THENCE SOUTH 00 0 40'40" EAST 75.00 FEET UPON THE WEST LINE OF SAID NORTHWEST QUARTER TO A LINE BEING 75.00 FEET SOUTHERLY OF AND PARALLEL WITH THE NORTH LINE OF SAID NORTHWEST QUARTER; THENCE NORTH 89 °34'30" EAST 76.50 FEET UPON SAID PARALLEL LINE AND UPON THE NORTH LINE OF SAID PROPERTY TO THE POINT OF BEGINNING; THENCE CONTINUE NORTH 89 °34'30" EAST 225.86 FEET UPON SAID PARALLEL LINE AND UPON SAID NORTH LINE OF SAID PROPERTY TO THE NORTHEAST CORNER OF SAID PROPERTY; THENCE SOUTH 35 °01'59" EAST 550.27 FEET UPON THE EAST LINE OF SAID PROPERTY TO AN ANGLE POINT; THENCE SOUTH 35 0 43'15" EAST 515.63 FEET UPON SAID EAST LINE TO THE NORTHEAST CORNER OF THAT PARCEL DESCRIBED AS PARCEL 2 IN THE FINAL ORDER OF CONDEMNATION RECORDED IN DOCKET 13527 AT PAGE 1959; THENCE SOUTH-46 °13'03" WEST 105.01 FEET UPON THE NORTH LINE OF SAID PARCEL 2 TO A NON- TANGENT CURVE CONCAVE NORTHWESTERLY, THE RADIUS POINT OF SAID CURVE BEARS NORTH 35 °05'41" WEST; THENCE SOUTHWESTERLY UPON SAID NORTH LINE OF SAID PARCEL 2 AND UPON THE ARC OF SAID CURVE, TO THE RIGHT, HAVING A RADIUS OF 7479.44 FEET AND A CENTRAL ANGLE OF 00 °57'36 ", FOR AN ARC DISTANCE OF 125.33 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL 2 BEING ON THE SOUTH LINE OF SAID PROPERTY; THENCE SOUTH 70 0 05'43" WEST 217.85 FEET UPON SAID SOUTH LINE TO THE SOUTHEAST CORNER OF THAT PARCEL DESCRIBED AS PARCEL 1 IN SAID FINAL ORDER OF CONDEMNATION RECORDED IN DOCKET 13527 AT PAGE 1959; THENCE NORTH 72 0 41'33" WEST 0.15 FEET UPON THE EAST LINE OF SAID PARCEL 1 TO AN ANGLE POINT; THENCE NORTH 26 °29'20" WEST 922.86 FEET UPON THE EAST LINE OF SAID PARCEL 1 TO A NON- TANGENT CURVE CONCAVE EASTERLY, THE RADIUS POINT OF SAID CURVE BEARS NORTH 65 0 41'04" EAST; THENCE NORTHERLY UPON SAID EAST LINE OF SAID PARCEL 1 AND UPON 3945 Last Fort Lowell Road • Suite I I I • Tucson 6 Arizona a 85712 • (520) 795.1000 • Fax. (520) 322 -6956 « wwwsickengineering.com EXHIBIT B TO SAN JOAQUIN PRE - ANNEXATION DEVELOPMENT AGREEMENT THE ARC OF s CURVE TO THE RIGHT, HAVING A RADIUS OF 527.96 FEET AND A CENTRAL ANGLE O FOR ARC DISTANCE OF 219.23 FEET TO A TANGENT LINE; THENCE NORTH 00"31'26"WEST 46.95 FEET PARCEL O THE POINT OF BEGINNING. r w s 6:\ 3833_ Call utve yALegafs \3833LCD1_BOLINDAPY.doc