HomeMy WebLinkAboutResolution 2016-010 Approving Mayor to execute the Foothills/Tapestry procedural development agreementMARANA RESOLUTION NO, 2016-010
RELATING TO DEVELOPMENT; APPROVING AND AUrrHORIGING THE MAYOR To
EXECUTE rF IE FOOTHILLS /TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT
AND CONDITIONAL SETTLEMENT AGREEMENT FOR THE PROPERTY LOCATED
WEST OF THORNYDALE ROAD, ABOUT A QUARTER MILE NORTH OF MOOR E
ROAD, AND ABOUT A QUARTER MILE EAST OF DOVE MOUNTAIN BOULEVARD
WHEREAS TAPESTRY PROPERTIES III, L.L.C., an Arizona limited liability company,
owns approximately 395.67 acres of real property located within the corporate limits of the
Town, consisting of Pima County Assessor's Parcel Numbers 219-33-0010, 219-33-0020,
219-33 - 00313, 219 - 330040, 219-33 -0050, 219 -33 -0060 and 219 -33 -0070, in Section 30,
Township I I South, Range 13 East, G& S RB &M (the "Property "); and
WHEREAS the Property was rezoned by Marana ordinance No. 90.11 to "Foothills
Specific Plan," consisting of residential use with a destination resort /hotel site and minor
specialty - commercial and office sites and permitting a target of 1471 and a maximum of 1,854
residential dwelling units; and
W[II REAS the property owner and the Town entered into the "Foothills Development
Agreement " on December 5, 2006, recorded in the Pima County Recorder's office on December
6, 2006 at Docket 12945, Page 5263 (the "original Agreement "); and
WHEREAS the original Agreement was entered into in anticipation of and just prior to
the effective date of Proposition 207, the Private Property Rights Protection Act, approved by the
.Arizona voters on November 7, 2006, and effective on December I I , 2006, when the Governor's
proclamation of the canvass of the vote was filed with the Arizona Secretary of State; and
WHEREAS the original Agreement was amended by the First .Amendment to Foothills
Development Agreement dated December 2, 2008, and recorded in the Pima County Recorder's
office on December 30, 2008, at Docket 13464, Page 394 (the "First Amendment "); and
WHEREAS the original Agreement was further amended by the Second Amendment to
Foothills Development Agreement dated January 11, 2011, and recorded in the Pima County
Recorder's office on January 20, 2011, at Sequence 20110200122 (the "Second Amendment ");
and
WHEREAS the original .Agreement as amended by the First Amendment and further
modified by the Second Amendment significantly reduce the residential development potential
of the Property compared to the Foothills Specific Plan; and
00044658.17aCX 11
Marana resolution No. 2016 -010 1/7/2016 7:55 PM FJC
WHEREAS, for various reasons, the propert owner contends that the Ori
A the First Amendment, and the Second Amendment are invalid and unenforceable,
and that the Propert is subject onl to the zonin re set forth in the Foothills Specific
Plan and
WHEREAS the Town believes the Ori A the First Amendment, and the
Second Amendment are valid and enforceable, and must be complied with in the development of
the Propert and
WHEREAS the propert owner and Town staff have ne an A in an
attempt to avoid liti and to resolve their disa concernin the zonin entitlements
associated with the Propert and
WHEREAS the Ma and Council find that enterin into the Foothills/Tapestr
Procedural Development A and Conditional Settlement A 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 Foothills/Tapestr Procedural Development A and Conditional
Settlement A is hereb approved.
SECTION 2. The Ma is hereb authorized and directed to execute, and the Town
Clerk is hereb authorized and directed to attest to, the Foothills/Tapestr Procedural
Development A and Conditional Settlement A attached to and incorporated b
this reference in this resolution as Exhibit A, for and on behalf of the Town of Marana.
SECTION 3. The various Town officers and emplo are authorized and directed to
perform all acts necessar or desirable to g ive effect to this resolution and the a it
approves.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN 01.4'
MARANA. ARIZONA., this 19 day of January, 2016.
N
A
9 7
ATTEST:
.4ocelyn 51, ronson, Town Clerk
Ma Ed H6ea
FORM:
00044658.DOCX /I
Marana Resolution No. 2016-010 - 2 - 117/2016 7:55 PM FJC
F. ANN RODRIGUEZ, RECORDER
Recorded By; LW
DEPUTY RECORDER
41
SMARA
TOWN OF MARANA
PICKUP
a � �
A
SEQUENCE.- 20160220175
NO. PAGES: 15
AG 01/22/2016
11:07:38
PICK UP
AMOUNT PAID: $12.00
FOOTHILLS /TAPESTRY PROCEDURAL DEVELOPMENT AGItEEMEN7['
AND CONDITIONAL SETTLEMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS FOOTHILLS/TAPESTRY PROCEDURAL D EVELOPMENT AGREEMENT AND CONDITIONAL
SETTLEMENT AGREEMENT (this "Agreement ") is made by and between the TOWN OF MARANA,
an Arizona municipal corporation (the "Town ") and TAPESTRY PROPERTIES III, L.L.C., an
Arizona limited liability company (the "Property Owner "). The Town and the Property Owner
are collectively referred to in this Agreement as the "Parties," either of which is sometimes
individually referred to as a "Party."
RECITALS
A. The Property Owner is the owner of approximately 395.67 acres of real property
located within the corporate limits of the Town, consisting of Pima County Assessor's Parcel
Numbers 219-33-0010, 219-33-0020, 219-33-003B, 219-33-0040, 219-33-0050, 219-33-0060
and 219 -33 -0070, in Section 30, Township 11 South, Range 13 East, G &SRB &M (the
"Property ").
B. On April 18, 1990, the Mayor and Council of the Town adopted Ordinance No. 90.11,
rezoning the Property to "Foothills Specific Plan." In addition to the Property, Ordinance
No. 90.11 also included an 18.9 -acre parcel carved out of what is now Pima County Assessor's
Parcel Number 219-33 -003B. This 18.9 -acre parcel that was originally included in the Foothills
Specific Plan is now part of Canyon Pass IV -B at Dove Mountain, recorded in the Pima County
Recorder's office at Book 59 of Maps and Plats, Page 6, and is not included in the Property.
C. The Foothills Specific Plan designates the Property as "primarily residential use with
a destination resort /hotel site and minor specialty - commercial and office sites." The Foothills
Specific Plan permits a target of 1471 and a maximum of 1,854 residential dwelling units and
includes a requirement of 12% open space. Of the total acreage, 267 acres is designated for the
residential uses and 147 acres is for the hotel/commercial/office, commercial health spa, roads,
open space and other uses.
D. The Parties entered into the Foothills Development Agreement on December 5, 2006,
recorded in the Pima County Recorder's office on December 6, 2006 at Docket 12945,
Page 5263 (the "Original Agreement ").
E. The Original Agreement was entered into in anticipation of and just prior to the
effective date of Proposition 207, the Private Property Rights Protection Act, approved by the
Arizona voters on November 7, 2006, and effective on December I I , 2006, when the Governor's
proclamation of the canvass of the vote was filed. with the Arizona Secretary of State.
F. The Original Agreement was amended by the First Amendment to Foothills
Development Agreement dated December 2, 2008, and recorded in the Pima County Recorder's
office on December 30, 2008, at Docket 13464, Page 394 (the "First Amendment ").
00043000.DOCX 16 1/12/2016 4:21 PM
FOO THILLS/TAPESTRY PRO CEDURAL, DE VELOPMEN'r A G REEMENT AND CO NDITIONAL S ETTLEMENT AGR EEMEN'r
-I -
G. The original Agreement was further amended by the Second Amendment to Foothills
Development Agreement dated January 11, 2011, and recorded in the Pima County Recorder's
office on January 20, 2011, at Sequence 20110200122 (the "Second Amendment ").
H. For various reasons, the Property owner contends that the original Agreement, the
First Amendment, and the Second Amendment are invalid and unenforceable, and that the
Property is subject only to the zoning regulations set forth in the Foothills Specific Plan.
I. The Town contends that the original Agreement, the First Amendment, and the
Second Amendment are valid and enforceable, and must be complied with in the development of
the Property.
J. The Parties enter into this Agreement in an attempt to avoid litigation and to resolve
their disagreement concerning the zoning entitlements associated with the Property.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises
and agreements set forth in this Agreement, the Parties hereby agree as follows:
Article 1. Property Owner - Requested Rezoning
1.1. Application for rezoning. within six months of the effective date of this Agreement the
Property owner shall submit an application for approval of an amended Foothills Specific Plan
(the "Amended SP ") to allow the zoning entitlements described in concept below.
1.1.1. Amended SP Sections and reports. The Amended SP will include amendments to
the Foothills Specific Plan, including possible Changes to the Introduction, Foothills Specific
Plan Description, Development Standards and Design Guidelines, Phasing and
Implementation sections. No amendment to the Development Capability (Introduction,
Existing Conditions or other Inventory Analysis) shall be required as part of the Amended
SP. If any additional reports (such as, but not limited to, traffic studies, archaeological
reports, or other existing conditions reports) are required as part of the Amended SP, the
Town shall accept prior, Town - reviewed reports as long as they are consistent with the
Amended SP.
1.1.2. Amended SP Uses. The Amended SP can include the potential for residential,
commercial, and/or resort /hotel land uses as discussed below:
1.1.2.1. The Property owner, in the Property owner's sole discretion, shall have the
right to elect to develop the entire Property for residential uses only up to 670 single -
family attached and/or detached dwelling units.
1.1.2.2. The Property owner, in the Property owner's sole discretion, shall also have
the right to elect to develop single- family attached and/or detached dwelling units along
with up to 55 acres of resort/hotel, timeshare, assisted living, condominium, multi- family
housing including apartment and related, or ancillary, commercial and office uses ("Non -
Residential Uses ").
1.1.2.2.1. The 5 5 acres is located in the areas of the Property identified in
paragraph 1.3 of the original Agreement as modified by paragraph 2.1 of the First
Amendment. The Property owner shall be entitled to adjust the acreage amounts of
22.7 acres and 32.3 acres as set forth in subparagraphs 2. 1.1 and 2.1.2 of the First
00043000. DOCX IC 1/12/2016 4:21 PM
FOOTHILLS /TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
.2-
Amendment by not more than 10% each, so long as the total acreage of the two areas
shall not exceed 55 acres.
1.1.2.2.2. If any portion of the 55 acres is developed with Non - Residential Uses,
then the maximum number of single - family detached and/or attached residential units
proposed outside of the area dedicated to Non - Residential Uses shall be 670 minus
two units for each acre utilized for Non - Residential Uses. Fractions shall be rounded
up to the next whole number. Units or rooms in a resort /hotel, timeshare, assisted
living, condominium, multi - family housing /apartment located within the Non -
Residential Uses area shall not count against the dwelling unit cap.
1.1.2.3. If land, in addition to the Property, is included in the Amended SP, the
dwelling unit counts in paragraphs 1.1.2.1 and 1.1.2.2.2 shall apply only to the Property,
and not to the additional land.
1.1.3. Open Space. The Amended SP shall require 50% of the Property to be used as
permanent open space, subject to the following:
1.1.3.1. The land area of Cayton Road (see paragraph 3.1 below) shall be subtracted
from the total land area of the Property before making the open space calculation.
1.1.3.2. For purposes of the 50% calculation, "open space" shall include natural
undisturbed open space and functional recreation areas. Functional recreation areas that
Count as open space include, but are not limited to, public and private open space lands;
parks and playgrounds; unpaved pedestrian walkways and riding, hiking, bicycle,
equestrian, and other non - motorized vehicle trails (including the Trail referenced in
paragraph 1. 1.4 below); revegetated underground utility areas; and similar recreational
open space uses. The entire land area of the Trailhead (paragraph 3.3 below) shall be
considered functional recreation area that counts as open space. "open space" shall not
include any disturbance associated with above - ground utilities, onsite roadways,
constructed drainageways, homesites, driveways, landscaping outside functional
recreation areas, or any other development - related activity that will occur or has already
occurred on the Property.
1.1.4. Frail. The Amended SP will include dedication of a 15-foot public easement for a
hiking /multipurpose trail (the "Trail") generally located along the western edge of the
Prospect Wash, extending from the boundary of the Property at or near the southwest corner
of the Property to the boundary of the Property at or near the northeast corner of the Property.
Town staff and Property owner will work together to identify the exact location of the Trail
during the Amended SP process.
1.1.4.1. Dedication by plat. If not already acquired pursuant to subparagraph 1.1.4.2
below, the Property owner shall dedicate the public easement for the Trail on the first
subdivision plat or block plat for the Property or by separate instrument concurrently with
the Town's approval of the first development plan for the Property.
1.1.4.2. Advance acquisition by the Town. At the Town's option, the Town may
purchase the public easement for the Trail for an amount mutually agreed upon by the
Property owner and the Town or for the easement's appraised value as determined in a
manner consistent with A.R.S. § 12 -1122 by a licensed appraiser selected by mutual
agreement of the Property owner and the Town.
00043000. DOCX /6 1/12/201 6 4:21 PM
FooTijILLS /TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
_3
1.1.5. Any revisions or modifications to the Amended SP as set forth in the application
for rezoning that are approved in writing by the Property Owner prior to the effective date of
the Amended SP.
1.2. Conditions of rezoning. The Property Owner accepts and acknowledges that the
Amended SP may be adopted subject to the following conditions of rezoning:
1.2.1. The standard conditions set forth on the current Town rezoning ordinance template,
attached as Exhibit A to and incorporated by this reference in this Agreement. To the extent
previously - submitted and approved reports are consistent with the Amended SP, the standard
conditions may be modified here to formally accept the approved reports.
1.2.2. Any conditions consistent with and/or implementing paragraph 3.2 below
( "Funding and construction recommendation for Cayton Roam).
1.2.3. Any conditions consistent with and /or implementing paragraph 3.3 below
("Trailhead').
1.2.4. Any other conditions of rezoning approved in writing by the Property Owner prior
to the effective date of the Amended SP.
1.2.5. Any other conditions imposed by the Town to protect existing, established legal
rights of other affected property owners.
1.3. Other lands. At the Property Owner's option, the Property Owner may seek to rezone
additional lands concurrently with and as part of the Amended SP; however, the Town's
obligations and commitments under this Agreement apply only to the Property and not to such
additional lands.
1.4. Waiver of Town rezoning processing fees. The Town shall waive its standard rezoning
application and processing fees for the Amended SP as it applies to the Property. For internal
accounting purposes, the fees may be paid by the Town from its general fund or from other
sources not directly funded by the Property Owner.
1.5. Town staff support. As long as the Amended SP is submitted to the Town in substantial
conformance with this Agreement, Town staff will recommend approval of the Amended SP.
The Property Owner understands and acknowledges that the rezoning of land is a legislative
process, and that the Town staff s support does not commit the Marana Planning Commission to
recommend approval of and does not commit the Marana Town Council to approve the
Amended SP.
Article 2. Conditional Settlement
2.1. adoption of the amended SP. Paragraph 2.4 below ("Waiver and release of claims ")
shall be effective automatically on the effective date of the Amended SP, adopted by the Town
as described in paragraph 1.1 above ( " application for rezoning ") and with conditions of rezoning
no greater than those described in paragraph 1.2 above ( " Conditions of rezoning ").
2.2. Failure to adopt the Amended SP. Paragraph 2.4 below ("Waiver and release of claims ")
shall not become effective if the Amended SP is not adopted by the Town as described in
paragraph 1.1 above and/or if the Amended SP is adopted with conditions of rezoning greater
than those described in paragraph 1.2 above ( " Conditions of rezoning ").
00043000, DOCX 16 1/12/2016 4:21 PM
FOOTHILLS/TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
-4-
2.3. Withdrawal of Amended SP. Property Owner, in its sole and absolute discretion, may at
any time during the Amended SP process, including and up to a vote of the Town Council,
withdraw the Amended SP application. If such withdrawal occurs, paragraph 2.4 below ("Waiver
and release of claims ") shall not become effective.
2.4. Waiver and release of claims. The Property Owner fully and permanently waives any
and all claims related to the zoning entitlements and obligations set forth in all of the following,
to the extent they differ from the zoning entitlements of the Amended SP:
2.4.1. The Foothills Specific Plan
2.4.2. The Original Agreement
2.4.3. The First Amendment
2.4.4. The Second Amendment
Article 3. Other Property - Specific Matters
3.1. Cayton .load. The road referred to in this Agreement as "Cayton Road" is the extension
of Thornydale Road, a public roadway, through the Property and connecting to Heritage Club
Boulevard, also a public roadway, on the west. Cayton Road is a public connector roadway
requested by the Town to create redundant east /west regional connectivity.
3.2. Funding and construction recommendation for Cayton Road. In connection with the
Amended SP, Town staff has reviewed the traffic studies for Cayton Road and represents as
follows:
3.2.1. Notwithstanding the Property Owner's preference not to construct a through public
road on the Property, Town staff anticipates recommending construction of Cayton Road as a
two -lane regional public collector road on a I 10-foot right -of -way width through the
Property. Cayton Road shall be constructed with a bike lane and multi -use paved asphalt path
and up to four traffic calming devices (such as roundabouts, chicanes, or "footballs"
reviewed by and acceptable to the Town Engineer) along the roadway.
3.2.2. Town staff shall recommend that the Town reimburse the Property Owner as
provided in paragraph 3.4 below ( ".Public improvements construction and reimbursement ")
for the cost of design and construction of the 100-year bridge crossing over Prospect wash
(the "Bridge ") that will be required to extend Cayton Road across the Property.
3.2.2.1. The final design of the Bridge shall be approved by the Town Engineer. At
the Property Owner's option, the final design of the Bridge may include aesthetic
enhancement features, such as (but not limited to) ornamental iron and stone fascia, the
cost of which shall be included in the reimbursement.
3.2.2.2. The Bridge and Caton Road linking Heritage Club Boulevard to Thornydale
Road shall be substantially completed before a building permit is issued for the 50 "'
single family attached or detached residential unit on the portion of the Property located
northwest of Prospect wash and before the 150"' single family attached or detached
residential unit on the entire Property. Then - existing Non - Residential Uses shall be
counted as two units per acre (see subparagraph 1.1.2.2.2 above).
3.3. Trailhead. At the Town's option, the Property Owner shall, concurrently with
construction of the Bridge, dedicate to the Town and construct a parking lot and trailhead
00043000. DOCx 16 1/12/2016 4:21 PM
FOOTHILLS/TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDI'T'IONAL SETTLEMENT AGREEMENT
.5
improvements (the "Trailhead") along Cayton Road in a location mutually acceptable to the
Property Owner and the Town Engineer in the vicinity of the Bridge. If the Town exercises its
option to require dedication and construction of the Trailhead, the following shall apply:
3.3.1. The land shall be dedicated to the Town in fee title, free and clear of all liens and
encumbrances.
3.3.2. The land dedicated to the Town for the Trailhead shall not affect the dwelling unit
counts in paragraphs 1.1.2.1 and 1.1.2.2.2
3.3.3. The final design of the Trailhead shall be approved by the Town Engineer.
3.4. Public improvements construction and reimbursement. The Town shall make
Reimbursement Payments to the Property Owner for the Town Public Improvement Costs as
follows:
3.4.1. Source of reimbursement; Construction Sales Tax Revenues defined.
Reimbursement shall be made only from "Construction Sales Tax Revenues," defined as
those portions of the Town's transaction privilege taxes (currently 4 %) generated pursuant to
Section 8-415 or 8 -416 of the Marana Tax Code (or corresponding sections of successor
codes) from construction contracting or speculative builder activities occurring on the
Property (including but not limited to the construction of the Bridge, the Trailhead,
residential units, and Non - Residential Uses, and general site development).
3.4.2. Public improvements construction. As a condition precedent to receiving
Reimbursement Payments under this Agreement, the Property Owner shall design and
construct the Bridge (see paragraph 3.2.2 above) and (if requested by the Town) the
Trailhead (see paragraph 3.3 above) in conjunction with its development of the Property and
in accordance with the State of Arizona and the Town public infrastructure construction
procurement laws and procedures.
3.4.3. Town Public Improvement Costs defined. The "Town Public Improvement Costs"
shall include the sum of all of the following:
3.4.3.1. The Property Owner's costs to design and construct the Bridge and the
Trailhead in accordance with paragraph 3.4.2 above ( "Public improvements
construction ").
3.4.3.2. The value of the land dedicated to the Town for the Trailhead, in an amount
mutually agreed upon by the Property Owner and the Town or for its appraised value as
determined in a manner consistent with A.R.S. § 12 -1122 by a licensed appraiser selected
by mutual agreement of the Property Owner and the Town.
3.4.3.3. Simple interest at the rate of 3% per annum on the value of the land dedicated
to the Town for the Trailhead and on the Property Owner's costs to design and construct
the Trailhead in accordance with paragraph 3.4.2 above (`Public improvements
construction "). Interest shall accrue beginning from the first day of the first calendar
quarter after the Property Owner dedicates the Trailhead land (see subparagraph 3.3
above).
3.4.4. Reimbursement amount. The Town shall make Reimbursement Payments to the
Property Owner for the Town Public Improvement Costs pursuant to paragraph 3.4.6 below.
The Property Owner shall submit to the Town quarterly statements showing the actual costs
00043000.DOCx 16 1/12/2016 4:21 PM
FOO THILLS /TAP ESTRY PRO CEDURAL DE VELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
� 6-
incurred and paid to date for the design and construction of the Bridge and the Trailhead.
Quarterly statements shall be provided until the total amount of all Reimbursement Payments
to the Property Owner equals the Town Public Improvement Costs, when the Property Owner
shall provide a final statement to the Town within 60 days. The Property Owner shall provide
the Town with invoices or other backup information reasonably requested by the Town to
confirm the accuracy of the Property Owner's quarterly statement of costs and contributions
or credits.
3.4.5. Reimbursement account. The Town shall deposit the Construction Sales Tax
Revenues into the Reimbursement Account as they are received from the Arizona
Department of Revenue, beginning with the first such revenues generated from construction
activities on the Property and ending upon the expiration of this Agreement. Funds in the
Reimbursement Account shall be reimbursed to the Property Owner pursuant to
paragraph 3.4.6 below. For purposes of this Agreement, the "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.
3.4.5. Reimbursement Payments. The Town shall pay the Property Owner within the first
30 days of each calendar quarter the lesser of (1) the Town Public Improvement Costs and (ii)
all funds in the Reimbursement Account ( "Reimbursement Payments "). Reimbursement
Payments shall begin the first calendar quarter after all of the following have occurred:
(a) the Property Owner has incurred costs for design or construction of the Bridge or the
Trailhead; (b) the Property Owner has submitted the first quarterly statement pursuant to
paragraph 3.4.4 above; and (c) the Town has received Construction Sales Tax Revenues
generated from construction activities on the Property. Any funds accrued in the
Reimbursement Account and owed to the Property Owner for the Town Public Improvement
Costs but not yet disbursed to the Property Owner upon the expiration of this Agreement
shall be paid to the Property Owner within 30 days after the expiration of this Agreement.
3.4.7. order of reimbursement. whenever the Reimbursement Account is insufficient to
fully reimburse the Property Owner for all reimbursable costs then paid by the Property
Owner, Reimbursement Payments to the Property owner shall be accounted first to any
remaining costs for design and construction of the Bridge, and then to any remaining Town
Public Improvement Costs attributable to the Trailhead dedication, design, and construction.
3.4.$. Annual report. Within 45 days following the end of each Town fiscal year, the
Town shall deliver to the Property Owner a report of all Construction Sales Tax Revenues
generated by or attributable to the Property 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 Property Owner has obtained and
provided to the Town written waivers of confidentiality sufficient to satisfy the requirements
of Arizona Revised Statutes § 42- 2003(A)(6) from each taxpayer whose confidential
information is revealed in the report.
3.4.9. Contractor and subcontractor disaggregation of tax information for the Property;
release of tax information. The Property Owner shall require each contractor and
00043000.DOCX 16 1/12/2016 4:21 PM
FOOTHILLs /TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL, SE'r'I'LEMENT AGREEMENT
-7-
subcontractor responsible for the payment of construction sales tax for work attributable to
the Property to separately report construction sales tax attributable to the Property. The
Property Owner shall exercise reasonable efforts to obtain from each contractor and
subcontractor doing work attributable to the Property 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 reasonable estimate of the Construction
Sales Tax Revenues derived from the Property based on all information available to the
Town, including information provided by the Property Owner, and the good faith
certification by the Town's Finance Director shall be considered final and binding upon the
Property 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.
3.5. Development impact fees. The Town's infrastructure improvements plan supporting its
roadway development impact fees (see A.R.S. § 9- 463.05) does not currently include Cayton
Road, and Town staff does not believe that Cayton Road will substitute for or otherwise reduce
the need for other roadways in the infrastructure improvements plan for which development fees
are being assessed. As a result, no development impact fee credits can be provided to the
Property Owner at this time and unless and until the infrastructure improvements plan is
amended to add Cayton Road. When the construction of Cayton Road is imminent (as reasonably
determined by the Town Engineer), the Town shall amend its infrastructure improvements plan
to add Cayton Road upon the Property Owner's written request. The Parties acknowledge that
adding Cayton Road to the infrastructure improvements plan could cause an increase in the
Town's roadway development impact fee applicable to the Property.
3.6. Exercise of eminent domain for sewer. The Property Owner anticipates the need to
acquire one or more public sewer easements across lands south of the Property. The Property
Owner will use commercially reasonable efforts to acquire any and all property rights needed to
construct offsite public sewers to serve the Property. The Property owner shall not construct
these offsite public sewers until either (i) the Property Owner has acquired the necessary
property rights pursuant to this paragraph or, (ii) the Town has obtained possession of the
necessary property rights by eminent domain, which the Town shall exercise by filing a
condemnation lawsuit in Pima County Superior Court within 180 days after the Property owner
advises the Town in writing that it has been unable to obtain the necessary property rights. If the
Town exercises its power of eminent domain pursuant to this paragraph, the Property Owner
shall pay all costs of condemnation, including but not limited to the condemnation award to the
property owners, costs of litigation, and reasonable attorneys' fees. If the Town settles a
condemnation lawsuit, the Property Owner shall pay the settlement costs, provided that those
costs do not exceed the higher of (a) 120% of the appraised value of the property rights acquired
or (b) an amount approved by the Property Owner.
Article 4. General Terms and Conditions.
4.1. Effective date. 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 ").
4.2. Term. 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
00043000.DOCx IG 1/12/2016 4:21 PM
FOOTHILI.,s /TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
-8-
be void for all purposes on the third anniversary of the Effective Date, unless the term has been
extended by a legislative action by the Marana Town Council before the termination date, or
unless before the termination date the Amended SP is adopted by the Town as described in
paragraph 1.1 above ("Application for rezoning ") and with conditions of rezoning no greater than
those described in paragraph 1.2 above ( " Conditions of rezoning "), in which case this Agreement
shall remain in full force and effect until the 25"' anniversary of the Effective Date.
4.3. Notice; manner of serving. All notices, filings, consents, approvals and other
communications provided for or given in connection with this Agreement shall be validly given,
filed, made, transmitted or served if in writing and delivered personally or sent by registered or
certified United States mail, postage prepaid, if to (or to such other addresses as either party
hereto may from time to time designate in writing and deliver in a like manner):
To the Town:
Town OF MARANA
Town Manager
11555 West Civic Center Drive
Marana, Arizona 85653
To the Property Owner
TAPESTRY PROPERTIES III, L.L.C.
c/o Town West Realty, Inc.
3573 East Sunrise Drive #133
Tucson, Arizona 85718
4.4. 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.
4.5. Severabil ity. If any provision of this Agreement is declared void or unenforceable, it
shall be severed from the remainder of this Agreement, which shall otherwise remain in full
force and effect. If a law or court order prohibits or excuses the Town from undertaking any
contractual commitment to perform any act under this Agreement, this Agreement shall remain
in full force and effect, but the provision requiring the act shall be deemed to permit the Town to
act at its discretion, and if the Town fails to act, the Property Owner shall be entitled to terminate
this Agreement.
4.6. 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 relating to this
Agreement shall take place in Pima County, Arizona.
4.7. Interpretation. This Agreement has been negotiated by the Town and the Property
Owner, and neither Party shall be deemed to have drafted this Agreement for purposes of
construing any portion of this Agreement for or against any Party.
4.8. Recording. 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 Property
Owner.
00043000.DOCX 16 1/12/2016 4:21 PM
FOOTHILLS/TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
-9-
4.9. Authorit Each Part represents and warrants that the individual executin this
A on its behalf is authorized and empowered to bind the Part on whose behalf each
such individual is si
4. Conflict of interest. This A is subj ect to A. R. S. § 3 8 - S 1 1, which provides for
cancellation of contracts in certain instances involvin conflicts of interest.
IN WITNESS WHEREOF, the Parties have executed this A as of the last date set forth
below their respective si
THE "TOWN":
THE TOWN OF MARANA, an Arizona municipal
corporation
B
Ed Honea, Ma
Date: / � '� �
ATTEST',
J J cely onson, Clerk
APPROVEELAS To FORM:
THE "PROPERTY OWNER":
TAPESTRY PROPERTIES 111, L.L.C., an Arizona
limited liabilit compan
B FOOTHILLS MARANA, L.L.C., an Arizona
limited liabilit compan its Member
B TOWN WEST REALTY, INC., an Arizona
corporation, its Mana
B
y'
/I ames Horvath, President/CEO
Date:
B FUTURE OF NEW MEXICO, L.P., a
Delaware limited partnership, its
Member
40r y Town A me
B y :
�k , 6
Peter Fasseas, General Partner
Date: �1 � � / �
STATE OF ARIZONA
ss
Count of Pima
The fore instrument was acknowled before me on jMUAg& 1�1 , 2016 b
James Horvath, President/CEO of TOWN WEST REALTY, INC., Arizo4 corporation, Mana
of FOOTHILLS MARANA, L.L.C., an Arizona limited liabilit compan Member of TAPESTRY
PROPERTIES, 111, L.L.C., an Arizona limited liabilit compan on behalf of the LLC.
(Seal)
. ... . . ... ... . . ... ...
WHITNEY o
STROMBERG
Nota B Ci_q_lt��
PIMA COUNT Public
ry Public - State of a
My co mmission Expires
Arizon
Y
Y
May 19, 2016
00043000.DOCX /6 1/121201 6 4:21 PM
FOOTHILLS/TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
_10-
STATE OF ARIZONA )
Count of Pima
W
The fore instrument was acknowled before me on - IA"- 11 ., 2016, b Peter
Fasseas, General Partner of FUTURE OF NEW MEXICO, L.)., a Dela re limited partnership,
Member of TAPESTRY PROPERTIES, Ill, L.L.C., an Arizona limited liabilit compan on behalf of
the LLC.
(Seal
WHITNEY STROMBERG
Notar Public - State of Arizona
PIMA COUNTY
M Commission Expires
Ma 19, 2016
� r Pu
00043000.DOCX 16 1112/2016 4:21 PM
FOOTHILLS/TAPESTRY PROCEDURAL DEVELOPMENT AGREEMENT AND CONDITIONAL SETTLEMENT AGREEMENT
- 11 -