HomeMy WebLinkAbout12/05/2006 Blue Sheet Cascada Specific Plan Development Agreement
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
MEETING DATE: December 5, 2006
AGENDA ITEM: J. 1. b.
TO: MAYOR AND COUNCIL
FROM: Frank Cassidy, Town Attorney
SUBJECT: Resolution No. 2006-197: Relating to Development; approving
and authorizing the execution of the Cascada Specific Plan Devel-
opment Agreement.
DISCUSSION
As of noon Wednesday, November 29, when this bluesheet was prepared, the Cascada Specific
Plan Development Agreement had not been finalized. However, the parties are very close to an
agreement. The Town Attorney's August 23, 2006 draft of the development agreement, with
September 26 proposed revisions from the developer's attorney, is provided with this bluesheet.
The few remaining issues under discussion are the subject of the attached October 9 and Octo-
ber 31 email communications.
We anticipate that development agreement negotiations will be brought to closure and a final de-
velopment agreement will be distributed to the Town Council prior to the December 5 meeting.
Assuming that a final Cascada Specific Plan Development Agreement is distributed to the Town
Council prior to the December 5 meeting, it should be approved only after or concurrent with the
approval of the Cascada Specific Plan.
RECOMMENDATION
If the Cascada Specific Plan Development Agreement is finalized and distributed to the Town
Council prior to the December 5 meeting, staff recommends adoption of Resolution
No. 2006-197.
ATT ACHMENT(S)
Draft September 26 Cascada Specific Plan Development Agreement
Frank Cassidy's October 9 and October 31 emails
SUGGESTED MOTION
I move to adopt Resolution No. 2006-197.
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MARANA RESOLUTION NO. 2006-197
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION
OF THE CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT.
WHEREAS the Mayor and Council find that the terms and conditions of the Cascada
Specific Plan Development Agreement are in the best interest of the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the Cascada Specific Plan Development Agreement,
attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved,
and the Mayor is hereby authorized to execute it for and on behalf ofthe Town of Marana.
BE IT FURTHER RESOLVED that the 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 aforementioned agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 5th day of December, 2006.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF
MARANA, an Arizona municipal corporation (the "Town") and RED POINT DEVELOPMENT, ~~,
an Arizona <;.QIP9mti9J.1!the "Owner"). The TOwnandtheOwnerarecollectivelyreferred to in
this Agreement as the "Parties," and each is sometimes individually referred to as a "Party."
RECITALS
A. The Owner owns or controls approximately 1,476 acres of land located in the Town
limits, as depicted on the map attached as Exhibit "A" and legally described in Exhibit "B" (the
"Property"). The Property and its development are currently included in, and are subject to, the
provisions of the Acacia Hills Specific Plan, Marana Ordinance No. 88.16, adopted July 5,
1988; or, the Northgate Specific Plan, Marana Ordinance No. 91.09, adopted May 7, 1991
(collectively, the "Current Specific Plans"). The Current Specific Plans permit the development
of in excess of 10,000 units on the Property.
B. The portion ofthe Property covered by the Northgate Specific Plan is also the subject of
the Northgate Development Agreement recorded in the Pima County Recorder's Office in
Docket 9038, at Pages 353-381 (the "Northgate Development Agreement").
C. The Property is included in the various phases of development set forth in the Cascada
Specific Plan (the "Cascada Plan"), which was submitted to the Town to modifY, amend and
supersede the Current Specific Plans as to the Property. The Cascada Plan effectively
downzones the Property and substantially reduces the number of units to be developed within
the Property to a maximum of 3,805 units instead of the more than 10,000 units permitted
under the Current Specific Plans.
D. Upon approval of the Cascada Plan and this Agreement, the Current Specific Plans,
including any and all related development agreements, shall be modified, amended and
superseded as to the Property, and the Property shall be developed in phases pursuant to the
Cascada Plan, as clarified and supplemental by this Development Agreement.
E. The Cascada Specific Plan also includes numerous special design features and public
amenities not included in the Current Specific Plans, including without limitation, special street
standards and an integrated system of trails and several hundred acres of open space featuring,
among other things, over 220 acres of natural undisturbed open space and wildlife habitat;
approximately 100 acres of drainage ways, including undisturbed drainage bottom and wildlife
corridors; more than 360 acres of open space within the area designated as Parcel 5 in the
Cascada Plan; and, close to 80 acres designated as recreational open space, which will include
multi-purpose recreation facilities and on-site storm water retention/detention.
F. Pursuant to the Current Specific Plans, the Owner has made substantial improvements
and commitments and, pursuant to the Cascada Plan and this Agreement, will continue to make
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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Deleted: LLC
Formatted: Small caps
Deleted: limited liability company
a substantial commitment of resources for public and private improvements during each phase
ofthe development of the Property including without limitation, roadways, parks, public trails,
open space and wildlife corridors, an open space management plan, schools, sewer and water
service, other utilities, and similar or related improvements.
G. The Town and the Owner further acknowledge that the development of each phase of
the Property, pursuant to the Cascada Plan and this Agreement, will result in planning and
economic benefits to the Town and its residents.
H. The Northgate Development Agreement expressly provides, subject to specific
limitations, that after the date of the development agreements applicable under the Current
Specific Plans (May 7, 1991) "the Town shall not impose or enact any additional conditions,
exactions, dedications, development or impact fees, rules or regulations applicable to or
governing the development of the Property." This language is referred to in this Agreement as
the "Northgate Vesting Language."
I. The Town questions the validity of the Northgate Vesting Language for reasons
including (i) the Owner's failure to undertake substantial development in reliance on the
Current Specific Plans and the Northgate Development Agreement within a reasonable time
after their adoption, (ii) the absence of a reasonable time limitation on the Northgate Vesting
Language, resulting in an illegal attempt to restrict future Councils' legislative authority,
(iii) the absence of benefit (consideration) to the Town, and (iv) special treatment of the Owner
with respect to development impact fees in violation of A.R.S. ~ 9-463.05, which requires that
all such fees be "assessed in a non-discriminatory manner."
J. The Owner contends that the Northgate Vesting Language is legally binding, enforceable
and effective.
K. The Parties desire to set aside their disagreement about the Northgate Vesting Language
by superseding and replacing the Northgate Development Agreement as to the Property with
this Agreement.
L. The Town has determined that it is in the best interests of the Town and its residents to
have the Property developed pursuant to the Cascada Plan, and its reduced densities and special
features, and subject to the substantial additional conditions, exactions, and commitments
contained in the Cascada Plan, and to the extent provided for in this Agreement.
M. The Town is currently in the design process on a project to construct a new Interstate 10
interchange at Twin Peaks Road (the "Twin Peaks TI Project"), and anticipates that
construction will begin in April 2008.
N. The plans for the Twin Peaks TI Project include fully reconstructed roadways for
Camino de Manana and Linda Vista Road adjacent to and in the vicinity of the Property. The
fully reconstructed Camino de Manana and Linda Vista Road improvements as they would be
constructed as part of the Twin Peaks TI Project are referred to in this Agreement as the
"CdM/L V Improvements." .
O. To facilitate the timely development ofthe Cascada Plan, the Owner desires to construct
limited portions of the CdM/LV Improvements before construction of the Twin Peaks TI
Project begins.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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P. The Parties desire to allow the Owner the flexibility to construct portions of the
CdMIL V Improvements as long as the Owner's construction does not unreasonably interfere
with or delay the Twin Peaks TI Project.
Q. The development of the Property shall be governed by the Cascada Plan, including the
Owner's design and development standards and guidelines, as clarified and supplemented by
this Agreement. The Marana Development Code, including the written rules, regulations,
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 of
this Agreement shall apply to the extent not covered by the Cascada Plan or this Agreement.
R. This Agreement is consistent with the portions of the Town's General Plan applicable to
the Property.
S. The Parties understand and acknowledge that this Agreement is a "Development
Agreement" within the meaning and pursuant to the terms of A.R.S. ~ 9-500.05.
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. The Northgate Development Agreement.
As of the effective date of this Agreement, the Northgate Development Agreement is
superseded as to the Property and replaced by this Agreement.
Article 2. Development of the Property.
2.1. Specific Plan. The Cascada Plan, as clarified and supplemented by this Agreement, is
hereby incorporated into the Town's General Plan for all purposes. Development of the Property
shall be in accordance with the Cascada Plan, as may be amended from time to time. Upon the
approval of the Cascada Plan by the Town, the Owner shall be authorized to implement the uses,
densities, and intensities set forth in the Cascada Plan, and wi\l be accorded all approvals
necessary to permit the Owner to implement the Cascada Plan, subject to the Town's review and
approvals of appropriate and required applications, block and subdivision plats, development or
site plans and applicable development standards and specifications. The Town and the Owner
acknowledge that adjustments or amendments to the Cascada Plan may be necessary from time
to time to reflect actual roadway alignments, 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. The Parties shall cooperate in good faith to agree upon and use
reasonable best efforts to process any adjustments or amendments to the Cascada Plan. Subject
to the limitations set forth in paragraph 4.3 below, the Town agrees to approve or issue such
permits, plans, specifications and/or plats of or for the Property as may be requested by the
Owner in order to implement, and which are reasonably consistent with, the Cascada Plan. The
Town's failure to timely approve any permits, plans, specifications or plats, or other matters
necessary to permit the Owner or any user or builder within the Property to reasonably
implement the Cascada Plan, shall be in breach of this Agreement. If and when the Parties find
that changes or adjustments are necessary or appropriate to be made to the Cascada Plan, they
shall, unless otherwise required by law, effectuate such changes or adjustments through
administrative amendments approved by the Town's Planning Director, which after execution,
shall be attached as an addendum to and shall become part of the Cascada Plan, and may be
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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further changed and amended from time to time as necessary, with the approval of the Town and
the Owner as provided in this paragraph. Unless otherwise required by law, no such
administrative amendments shall require prior notice or hearing. Notwithstanding the foregoing,
the following matters shall not be considered administrative changes or amendments, but shall be
considered substantive amendments which shall be reviewed by the Planning and Zoning
Commission and approved by the Town Council:
2.1.1. Alteration of the permitted uses ofthe Property;
2.1.2. Increase in the density or intensity of use or number of dwelling units (except as
allowed in connection with the transfer of specific density and intensity requirements
between individual parcels as provided in the Cascada Plan and this Agreement);
2.1.3. Increase in the maximum height and size of permitted buildings (except as allowed
in connection with the transfer of specific building height and size limitations between
individual parcels within the Property as provided in the Cascada Plan and this Agreement);
and,
2.1.4. Deletion of a requirement for the reservation or dedication of land for public
purposes, except for minor boundary adjustments approved by the Planning Director.
2.2. Current Specific Plan and Other Development Review. Each phase of the Property shall
be developed in a manner consistent with the Development Regulations and the Cascada Plan, as
clarified by this Agreement. The Cascada Plan establishes the basic land uses, the densities and
intensities of such uses, whereas this Agreement quantifies the exactions and the development
regulations applicable to the development of the Property. Upon the Owner,'s compliance with
the applicable development review and approval procedures and the substantive requirements of
the development regulations that now apply to the Property, the Town agrees to timely process
all submittals for any portion of the Property and to timely approve such block plats, any
subdivision or other plats and any building or other permit applications consistent with the
Cascada Plan and applicable development regulations and to timely issue such permits or similar
approvals for the Property.
2.3. Zoning and Plat Conditions. The Owner agrees to fulfill all related conditions of the
Cascada Plan and other applicable development regulations. The Cascada Plan, as clarified and
supplemented by this Agreement, supersedes the existing subdivision plats within the Property.
Subject to compliance with any applicable statutory requirements (for example, A.R.S. ~ 9-407
or A.R.S. ~ 28-7203), any road or other dedication in favor of the Town contained in or
conveyed pursuant to any such plat is abandoned effective upon the recording of a new or
amended plat covering the land area with the particular road or other dedication in favor of the
Town.
2.4. ArchaeologicallHistoric Resources. Development of each phase 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.
2.5. Residential Design Guidelines. All residential construction on any portion of the
Property shall be constructed in accordance with the design standards and guidelines contained
in the Cascada Plan. The Parties acknowledge and agree that the residential guidelines contained
in the Cascada Plan fall within the exception for specific plan-tailored design standards found at
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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Section 8.06.02(B) ofthe Marana Land Development Code; consequently, the Town's residential
guidelines as adopted in Marana Ordinance No. 2005.18 shall not apply to the Property.
2.6. No Manufactured Housing. No manufactured housing shall be permitted on any portion
of the Property.
2.7. Management of Open Space. Owner shall cause to be prepared, at Owner's cost, a
management plan for the proper management and maintenance of the open space areas included
in the Cascada Plan.
2.8. Alignment of Roadwavs and Adiustments. The Parties acknowledge that the locations
and alignments of major roadways set forth in the Cascada Plan are based on current conceptual
designs and traffic projections. The actual design and improvement of the major roadways within
the Property, including Camino de Mafiana and Linda Vista, will necessarily require adjustments
from existing roadway alignments and corresponding parcel boundaries. Upon completion of the
design and actual construction of the major roadways within the Property, the boundaries of the
parcels established by the Cascada Plan shall be adjusted to correspond to the actual alignment of
the roadways, as constructed, through the submittal of a revised plat or similar submittal
permitted by paragraph 2.9 of this Agreement. In such submittal, Owner shall have the right to
adjust the permitted uses and densities of land located along the actual roadway alignment to
preserve the overall percentage or ratio of each such use and density classification within the
Property permitted under the Cascada Plan.
2.9. Revised Plat. The Owner may submit and the Town shall approve revised block plats,
subdivision plats, development plans or similar submittals for portions of the Property which
may vary from the Cascada Plan, provided that the revisions in any such submittal are
substantially consistent with the general development concept contained in the Cascada Plan, or
the provisions of this Agreement, without the necessity of amending the Cascada Plan or this
Agreement. The determination of consistency shall be made by the Town's Planning Director,
and appeals may be taken to the Town's board of adjustment in a manner consistent with other
zoning interpretation appeals.
2.10. Timing. The Town and Owner acknowledge the necessity of prompt review by the
Town of all plans, applications, and other materials submitted by the Owner ("Submitted
Materials") pursuant to the Cascada Plan, this Agreement, or any zoning, permit, or other similar
procedure pertaining to the development of the Property. The Town agrees to use its best efforts
to accomplish such prompt and expeditious review of all such Submitted Materials whenever
possible.
Article 3. Utilities and On-Site Infrastructure.
3.1. Water Utilities. The Owner has entered into a Water Service Agreement with the Town
for potable and non-potable systems which sets forth the various agreements of the Parties
relating to, among other things, the interconnection and main extension from the existing water
system, and the development, construction, dedication, ownership, and design of the water
system.
3.2. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the
Property, the Owner shall have completed or shall provide evidence to the Town that Owner has
made a diligent effort to complete the process of having the Property annexed into a fire district.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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3.3. Compliance with State and Federal Laws and Regulations. Owner expressly
acknowledges that no approval, permit or authorization of the Town authorizes the Owner to
violate any applicable federal or state laws or regulations, or relieves the Owner from the
independent 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 4. Owner's Contributions for Roadway Improvements,
Public Schools, and Public Parks and Trails
4.1. Cascada Plan Roadways. The Owner shall construct all interior subdivision streets and
roads within the Property as set forth in the Cascada Plan in connection with the development of
the various phases of the Property under the Cascada Plan.
4.2. Rights-of-Way for Adiacent Regional Roadways. The Owner shall dedicate all rights-of-
way needed from the Property for any portion ofthe Adjacent Regional Roadways on the later of
the following dates:
4.2.1. Ninety days after the effective date ofthis Agreement; or
4.2.2. Sixty days after the completion of 90% plans for the roadway that is the subject of
the requested portion of right-of-way.
4.3. Concurrency of On site Development and the Twin Peaks TI Proiect. The Owner shall be
permitted to construct improvements on the Property before and during the construction of the
Twin Peaks TI Project, provided that construction activities on the Property and on adjacent
roadways shall not unreasonably interfere with the construction of the Twin Peaks TI Project.
4.4. Owner's Construction of Portions of the CdM/L V Improvements. The Owner shall be
permitted to construct portions ofthe CdM/L V Improvements to the extent they are necessarY for
the Cascada Development so long as the Owner's construction begins not later than eight months
before and is contractually obligated to finish not later than the date of the then-anticipated start
of construction of the Twin Peaks TI Project. Owner shall receive development impact fee
credits (see Article 6 below) against the Marana South Transportation Development Impact Fee
for its actual cost to construct portions ofthe CdM/L V Improvements.
4.5. Public Parks and Public Trails. The Property is subject to the Town-Wide Park
Development Impact Fee adopted by Ordinance No. 2005.11, as amended from time to time (the
"Park Impact Fee"). Owner shall receive development impact fee credits (see Article 6 below)
against the Park Impact Fee for all land dedicated for public parks or public access trails,
whether by the grant of fee title or a public access easement, and all costs incurred by Owner in
the construction or improvement of the regional park and other public access parks or trails
included in the Cascada Plan.
4.6. School Land. Developer shall~~L1Q either dedicate land designated as school sites on
the Cascada Plan to the Town in trust for public school use or shall pay Marana Unified School
District a fee in lieu of the land dedication. This land is referred to as the "School Land." Until
ownership of the School Land is transferred to a public school entity for the construction of a
public school, the Town may use the School Land for public park purposes. The Town shall be
obligated to transfer ownership of the School Land to a public school entity if the public school
entity requests it and proves to the Town's satisfaction that actual construction of a public school
will begin on the School Land within a reasonable period of time. If ownership of the School
Land is not transferred to a public school entity within 15 years of the date of this Agreement,
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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the School Land may be used by the Town of Marana for public recreation purposes. The School
Land shall be delineated at the time of Town approval of the Preliminary Plat, based on feedback
by the Marana Unified School District, the Town's Parks and Recreation Director, and the
Town's Planning Director. In lieu of the dedication of the School Land, Developer may
contribute a School Improvement Contribution Fee of $1,200 per 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 residential unit.
Article 5. Cooperation and Alternative Dispute Resolution.
5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate
in the progress of the Development, the Town and the Owner each shall designate and appoint a
representative to act as a liaison between the Town and its various departments and the Owner.
The initial representative for the Town (the "Town Representative") shall be the Planning
Director, and the initial representative for the Owner shall be Gh~!YIJ::!<.l.II'prarepla<::t:mt:ntto be
selected by the Owner. The representatives shall be available at all reasonable times to discuss
and review the performance of the Parties to this Agreement and the development of the
Property .
5.2. Default: Remedies. If either Party defaults (the "Defaulting Party") with respect to any
of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party")
shall be entitled to give written notice in the manner prescribed in paragraph Article 8 to the
Defaulting Party, which notice shall state the nature ofthe 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 this Article. 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 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.
5.3. 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 Owner 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 Owner 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
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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lDeleted: Jack Richter
---~
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 on the Parties, and any Party shall be
free to initiate arbitration after the moratorium.
5.4. Arbitration. After mediation, as provided for in this Article, 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 ofthe
American Arbitration 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.
Article 6. Future Development Impact Fees
6.1. Credits. If the Town adopts a development impact fee for the same infrastructure for
which the Owner has contributed land or made improvements or paid a voluntary fee pursuant to
this Agreement, the Owner shall be entitled to a credit for such contributions as set forth in
A.R.S. ~ 9-463.05.
6.2. Value of Dedicated Property. The portions of the Property dedicated for public use
("Dedicated Property") and for which Owner is entitled to receive a development impact fee
credit shall be valued based on property values used to establish the applicable development
impact fee. As currently in effect, the Marana South Transportation Development Impact Fee
was established without including any anticipated costs for right-of-way acquisition.
Consequently, to the extent dedicJ.J1ion of rizht-oj:'wav easements could be properlv required for
the Cascada Development. no development impact fee credit will be granted for right-of-way
dedicated for improvements funded by the Marana South Transportation Development Impact
Fee unless it is amended to include right-of-way costs or unless the Town adopts some other
roadway development impact fee against which the right-of-way may be creditable. Nothing
contained herein waives Owner's rights conferred bv A.R.S. ~ 9-500.12.
Article 7. Protected Development Rights
7.1. General. To ensure reasonable certainty, stability and fairness to the Owner and the
Town for a reasonable period of time, the land use designations, uses, and densities that now
apply to the Property, as amended by this Agreement, shall remain in effect and shall not be
changed without the consent of the Owner as follows:
7.1.1. For a period of seven years after the effective date of this Agreement.
7.1.2. For an additional seven-year period if within the seven-year period referenced in
paragraph 7.1.1 above the Owner has accomplished the following:
7.1.2.1. .construction of thes~\veroutfaH line intend~(lto serve theCascada
Development south of Lambert Lane: construction of!! reservoir addition. approximatelv.
6,500 gallons in size, augmenting the existing Hartman Vistas Reservoir; construction of
a 16-inch water main intended to serve the Cascada Development; and obtaining active
permits and unde.rtaking grading. paving, and 9ther infrastructUf(Limprovem~[lJ5-,
including roadwavs. ultimatelv to be dedicated to the public.
7.1.3. For an additional six-year period if within the seven-year period referenced in
paragraph 7.1.2 above the Owner has accomplished the following:
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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Deleted: [Insert a list of specific items:
rooftop benchmarks, square footage of
commercial, construction of onsite public
infrastructure, etc., presumably tracked to
the "phases" mentioned in the recitals,
that the Owner anticipates completing
within the applicable period that justifies
the additional vesting period.]
7.1.3.1. J naddition to the f()regoing. the ()wner wi I! have cornpl\';tedconstruction of a
second 16-inch well site to be dedicated to the Town or applicable water company and
fll!:.tJleL~ngag~jrL.gri!giD.g,J2;Jving, s~l.ver and wateLllJ~talJations in...tll}1hera1!Q.~__Q.(J.h~
development specified in the Cascada Specific Plan and infrastructure improvements
required by the Tmvn of Marana.
7. 1.4. To the extent market conditions or other unforeseen events impede the completion"
of development within 21 vears, and to the extent there is not an over-ridini! public need to
modifv the Cascada Specificj>lan, the Town of Marana and Owner agree to resolve. in good
faith. the balancing of rights and further obligations against the public good in order to fulfill
the obiectives of the Cascada Specific Plan.
Article 8. Notices and Filings.
8.1. Manner of Serving. AI! 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 any Party may from time
to time designate in writing and deliver in a like manner):
To the Town:
Town Manager
Town of Marana
Mamna Municipal Complex
11555 West Civic Center Drive, A3
Marana, AZ 85653
Red Point Development, Inc.
8710 North Thornydale Road, #120
Tucson, AZ 85742
Article 9. General Terms and Conditions.
9.1. 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. The Developer shall be entitled to
terminate this Agreement if the Town materially impairs the development entitlements on the
Property granted by this Agreement.
9.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver ofthat right
or remedy, and no waiver by the Town or the Owner 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 ofthis Agreement.
9.3. Attornev'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. Nothing in the
To Owner:
{00002248.DOC / 4}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 9-
fDeleted-;-[i~-;;'-;:;-~list of specific items
i rooftop benchmarks, square footage of
j commercial, construction of onsite public
1 infrastructure, etc., presumably tracked to
I the "phases" mentioned in the recitals,
! that the Owner anticipates completing
i within the applicable period that justifies
L:?e additional vesting period.]
, Formatted: Bullets and Numbering
use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 5.4
above, requiring disputes to be resolved by binding arbitration.
9.4. 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.
9.5. Headings. The descriptive headings of this Agreement are intended to be used to assist
in interpreting the meaning and construction ofthe provisions of this Agreement.
9.6. Recitals. The Recitals set forth at the beginning of this Agreement are hereby
acknowledged, confirmed to be accurate and incorporated here by reference.
9.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been
incorporated in this Agreement by reference with the same force and effect as if fully set forth in
the body of this Agreement.
9.8. Further Acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter contemplated by this
Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good
faith and process promptly any requests and applications for plat or permit approvals or
revisions, and other necessary approvals relating to the development of the Property by the
Owner and its successors.
9.9. Future Effect.
9.9.1. Time Essence and Successors. Time is of the essence of this Agreement. All of
the provisions of this Agreement shall inure to the benefit of and be binding upon the
successors, assigns and legal representative of the Parties, except as provided in
paragraph 9.9.2 below. Notwithstanding the foregoing, to the extent permitted by law, the
Owner's rights under this Agreement as to all or any phase or portion of the Cascada Plan or
the Property may only be assigned by a written instrument, agreed to by all ofthe Parties and
recorded in the Official Records of Pima County, Arizona, expressly assigning such rights,
and no obligation of the Owner 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. The Town understands that the
Owner may create one or more entities or subsidiaries wholly owned or controlled by the
Owner for purposes of carrying out the development of the Property as contemplated in this
Agreement, and the Town's consent to the Owner's assignment of its rights under this
Agreement to such entities or subsidiaries shall not be withheld. In the event of a complete
assignment by Owner of all rights and obligations of Owner under this Agreement, or as to
any phase or portion of the Cascada Plan or the Property, Owner's liability under this
Agreement shall terminate, as to the phase or portion of the Property assigned, effective upon
the assumption ofthose liabilities by Owner's assignee, provided that the Town has approved
the assignment to such assignee, which approval shall not unreasonably be withheld.
9.9.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate
without the execution or recordation of any further document or instrument as to any lot
which has been finally subdivided and individually (and not in "bulk") leased (for a period of
{00002248 DOC / 4}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 10-
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 ofthis Agreement.
9.10. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between the Owner 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.
9.11. Other Instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all further instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
9.12. Imposition of Duty bv Law. This Agreement does not relieve any Party of any
obligation or responsibility imposed upon it by law.
9.13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements,
representation and understanding of the Parties, oral or written, are hereby superseded and
merged in this Agreement.
9.14. Amendments to Agreement. No change or addition shall be made to this Agreement
except by a written amendment executed by the Parties. The Parties agree to cooperate and in
good faith pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Final Plats or Development Plans governing the Property
and Cascada Plan as amended by this Agreement. Within ten days after any amendment to this
Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense
of the Party requesting the amendment.
9.15. Names and Plans. The Owner 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 Owner 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.
9.16. Good Standing; Authority. The Owner 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 Owner that it is an Arizona
municipal corporation with authority to enter into this Agreement under applicable state laws.
Each Party represents and warrants that the individual executing this Agreement on its behalf is
authorized and empowered to bind the Party on whose behalf each such individual is signing.
9.17. Severability. If any provision of this Agreement is declared void or unenforceable, it
shall be severed from the remainder of this Agreement, which shall otherwise remain in full
force and effect. If a law or court order prohibits or excuses the Town from undertaking any
contractual commitment to perform any act under this Agreement, this Agreement shall remain
in full force and effect, but the provision requiring the act shall be deemed to permit the Town to
{00OO2248.DOC / 4}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 11 -
act at its discretion, and if the Town fails to act, the Owner shall be entitled to terminate this
Agreement.
9.18. Governing Law. This Agreement is entered into in Arizona and shall be construed and
interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall
take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding
sentence shall constitute a waiver of paragraph 5.4 above, requiring disputes to be resolved by
binding arbitration.
9.19. Interpretation. This Agreement has been negotiated by the Town and the Owner, 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.
9.20. Recordation. The Town shall record this Agreement in its entirety in the office of the
Pima County Recorder no later than ten days after it has been executed by the Town and the
Owner.
9.21. No Owner Representations. Except as specifically set forth in this Agreement, nothing
contained in this Agreement shall be deemed to obligate the Town or the Owner to complete any
part or all of the development ofthe Property.
9.22. Approval. If any Party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or permission shall not be unreasonably
withheld or delayed.
9.23. Force Majeure. 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. "Force majeure," as used in this paragraph, means any condition or event not reasonably
within the control of such Party, including without limitation, "acts of God," strikes, lock-outs,
or other disturbances of employer/employee relations; acts of public enemies; orders or restraints
of any kind of government of the United States or any state thereof or any of their departments,
agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots;
epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts;
floods; arrests, restraints of government and of people; explosions; and partial or entire failure of
utilities. Failure to settle strikes, lock-outs and other disturbances 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.
9.24. Conflict of Interest. This Agreement is subject to A.R.S. ~ 38-511, which provides for
cancellation of contracts in certain instances involving conflicts of interest.
{00OO2248.DOC 14}
8/23/2006 3 :07 PM
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 12-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
TOWN:
OWNER:
THE TOWN OF MARANA, an Arizona
municipal corporation
RED POINT DEVELOPMENT, Jl"~:., anArizona
forporation
By:
Ed Honea, Mayor
Date:
By:
Laurence C. Leung, President
Date:
(NAME]
ATTEST:
By:
[Title]
Date:
Jocelyn C. Bronson, Clerk
ApPROVED AS TO FORM:
Frank Cassidy, Town Attorney
STATE OF ARIZONA)
ss
County of Pima
The foregoing instrument was acknowledged before me on by (Name], [Title] of [OWNER
NAME], an Arizona corporation, on behalf ofthe corporation.
My commission expires:
Notary Public
STATE OF ARIZONA)
ss
County of Pima )
The foregoing instrument was acknowledged before me on by (Name], [Title] of [OWNER
NAME], an Arizona corporation, on behalf of the corporation.
My commission expires:
Notary Public
{00OO2248.DOC 14}
8/23/20063:07 PM
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- I3 -
Deleted: LLC
- Formatted: Small caps
De!.~ed: lim~:~ liability co~any __J
Frank Cassidy
From:
Sent:
To:
Cc:
Frank Cassidy
Monday, October 09,20063:33 PM
'G. Lawrence Schubart - Stubbs & Schubart, P.C.'
Mike Reuwsaat; Gilbert Davidson; Keith Brann; Barbara Berlin; Fernando Prol; Kevin
Thornton
Cascada DA Revised Draft
Subject:
Larry:
I have reviewed the draft Cascada Specific Plan DA you sent to me on September 26. We are generally pleased with
it. After speaking to the Town Manager and staff, we believe the following relatively minor revisions are needed:
o Paragraph 2.7 of the draft DA, which involves management of open space, will need to be modified to add
specificity (does your client plan to put ownership in a HOA?) and to allow third party enforcement (in other words,
enforcement by the Town) if the party specified for enforcement in the management plan (presumably the HOA)
fails to enforce.
o Paragraph 3.2 needs to be modified to specify Northwest Fire District.
o Paragraph 4.6 needs to be at MUSD's option. The words "elect to" should be deleted and replaced with "at
the option of Marana Unified School District."
o Because of the timing of this DA relative to the election, we need to add a provision to address the possible
effects of Proposition 207, acknowledging that this is a voluntary downzoning for which no compensation is
required.
I look forward to hearing from you. If we can turn these last few revisions around promptly, we should be able to
place this on the Council's November 7 agenda for adoption.
--Frank
1
Page 1 of 1
Frank Cassidy
From: Frank Cassidy
Sent: Tuesday, October 31,200612:42 PM
To: 'G. Lawrence Schubart - Stubbs & Schubart, P.Co'
Cc: Barbara Berlin
Subject: URGENT: Cascada DA
Attachments: Cascada DA Revised Draft
Larry:
I need the "final" version of the Cascada DA, with exhibits, as soon as possible for inclusion in the Council
packets. Otherwise we will have a difficult time getting the Council to approve it at next Tuesday's meeting.
We will also need to have in hand not later than the start of next Tuesday's meeting a fully executed copy of
the DA, with exhibits.
The last version of the DA I've seen is the PDF redline you emailed me on September 26. To date, I have
not seen a revision that addresses my comments sent to you via email on October 9 (a copy of that email is
attached). Not mentioned in that email but obvious upon reading the DA is the need to replace bracketed
language (for example, "[Name]" and "[Tide]") and to provide the correct entity names. In your draft,
you've revised the principal's name, but you have not added the tide owners. According to the Pima County
Assessor's records, some of this land is held in the name of Fidelity National Title under Trust No. 10789
and some is held in the name of Pacific International Properties LLP, both of whom (along with any other
title owner of any portion of the land covered by the Specific Plan and DA) need to be added into the
introductory paragraph of the agreement (and there included in the term "Owner") AND as signers to the
agreement (my original form had room for one additional signer - thus the "[Name]" and "[Title]"
discussion above).
If you have not already made the requested revisions, please either make them at this time for my review or
send me the Word version of the document so that I can revise it accordingly. I will begin getting major flak
from the Clerk's office if I do not have the document in hand by close of business tomorrow, and the
Council will begin complaining if the agenda materials, with the final version of the DA, are not in their
hands by Thursday evening.
I look forward to hearing from you at your earliest convenience.
-- Frank
11/29/2006