HomeMy WebLinkAboutResolution 2003-061 development agreement with FCD ventureMARANA RESOLUTION NO. 2003-61
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA,
AUTHORIZING THE APPROVAL AND EXECUTION OF A DEVELOPMENT AGREEMENT
BETWEEN THE TOWN OF MARANA AND FCD MARANA VENTURE I, L.L.C., FOR THE
DEVELOPMENT OF PROPERTY BY FCD MARANA VENTURE I, L.L.C.
WHEREAS, FCD Marana Venture I, L.L.C. ("Developer"), owns 494 acres of property
("Property"), which is located within the limits of the Town of Marana; and
WHEREAS, Developer intends to construct a master-planned community, including
single-family residences, commemial uses, and recreation/open space on the Property; and
WHEREAS, t he s taft o f t he T own and t he Developer h ave prepared the Development
Agreement attached hereto as Exhibit "A" and incorporated herein by this reference; and
WHEREAS, the Mayor and Council and the Developer acknowledge that the development of
the Property pursuant to the Agreement will result in planning and economic benefits to the Town
and its residents by, among other things, requiring development of the Property consistent with the
MDC, the Specific Plan, the Northwest Marana Area Plan and General Plan, and the Conceptual
Block Plat; and
WHEREAS, the Mayor and Council have determined that the development of the Property
will stimulate the Town's economy, and that the Town will receive good and adequate consideration
for its performance of the provisions of the Development Agreement; and
WHEREAS, pursuant to A.R.S. § 9-500.05, the Town is authorized to enter into development
agreements relating to property in the Town; and
WHEREAS, the Mayor and Council have determined that the terms of the Development
Agreement are unobjectionable and do not conflict with the Town's general plan or with the interests
of the Town or its residents; and
WHEREAS, the Mayor and Council have determined that approval of the Development
Agreement is in the best interests of the Town and its residents.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana,
Arizona, that the Development Agreement, attached hereto as Exhibit "A" and incorporated herein by
this reference, is hereby approved.
Marana, Arizona Resolution No. 200341 Page 1 of 3
BE IT FURTHER RESOLVED by the Mayor and Council that the Mayor is hereby
authorized to execute the Development Agreement on behalf of the Town of Marana.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
3rd day of June, 2003.
ATTEST:
APPROVED AS TO FORM:
.,,,,--'~aniel J. H~"~huli, Esq.
As Town Attorney
and not personally
Marana, Arizona Resolution No. 200341 Page 2 of 3
SANDERS
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/2001 09:53 Fk,[ 520 623 5702 LAWYERS TITLE AZ ~009/015
Exhibit A
CASE NO. 408051
Parcel
That portion of the South Half of Section 26, Township t'~.South~ Range l'J East, Gila and Salt River Base and
Meridian, Pima County, Arizona, lying Southerly and We~{arly of that portion conveyed to Cortaro-Marana
Irrigation District in Docket 19a5 at page 243.
EXCEPT the South 30 feet within the right of way of Grier Road #112 (Moore Road) as shown in Book 2 of Road
Maps at page ~26;
AND EXCEPT the West 30 feet within the right of way of Pestvale Road #28 as shown in Book I of Road Maps at
page 70.
AND EXCEPT that portion conveyed to the Town of Marana by Deed recorded in Docket 90~4 at page 1524, more
particularly described as follows; '
BEGINNING at the Northwest comer of the Southwest Quarter of said Section 26, Township 11 South, Range
East;
. ,ENCE North 89 degrees 45 minutes 37 seconds East, along the No~rth line of said Southwest Quarter of
Sect[on 26, a distance of 1805.05 feet to a point in the SoUthwest Hght of way line of [nteretate Highway 10;
THENCE South 49 degrees 36 minutes 21 seconds East, along said Southwest right of way Pine, 47.90 feet;
THENCE Northwesterly along a curve concave to the South having a radius of 25.00 feet and a central angle of
41 degrees 38 minutes 02 seconds, ~8,'J? feet;
THENCE South 89 degrees 45 minutes 37 seconds West parallel to and 25.00 feet South of the North line of said
Southwest Quarter, 1569.80 feet;
THENCE Southerly along a curve concave to the Southeast having a radius of 25.00 feet and a central angle of
89 degrees 51 minutes 26 seconds, 39.21 feet;
THENCE South 88 degrees 45 minutes 37 seconds West, 30.00 feet to a point in the West line of sald Southwest
Quarter of Section 26;
THENCE North 0 degrees 05 minutes 49 seconds West, 49.94 feet to the POINT OF BEGINNING, EXCLUDING
THEREFROM any portions previously dedicated as public right of way.
Parcel II
the South Half of Section 27, Township 11 South, Range ~'J East, Gila and Salt River Base and Meridian, PJma
~ounty, Arfzona.
~X' '~T the East 30 feet within the dght of way of Postvale Road #28 as shown in Book I of Road Maps at page
0;
,/2001 09:54 FAX 520 623 5762 LAYP/ERS TITLE AZ ~010/01§
AND EXCEPT the South 30 feet within the right of way of erier Road #112 (Moore Road) as shown in Book 2 of
Road Maps at page
AND EXCEPT the West 30 feet within the right of way of Grief Road #117 (Sandario Road) as shown in Book 2 of
Road Maps at page '174;
AND EXCEPT the North 25 feet within the right of way of Barnett Road as shown in Book 14 of Roa~l Maps at
page
2,2
F. ANN RODRIGFEZ, RECORDER
RECORDED BY: .J1'
D\... .;,ry RECORDER
1541 PE3
DOCKE~: 12071
PA~ 4475
NO. _~ PAGES: 28
SEQUENCE: 20031141033
06/13/2003
AG 15:53
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
MAIL
AMOUNT PAID $ 19.50
~kV L. v\' \"IUIIV.l ""'" J.'\..U., kJU1l""" .1 .1 V
Tucson,PlZ 85705
DEVELOPMENT AGREEMENT
BETWEEN
TOWN OF MARAN A, ARIZONA,
AND
FCD MARANA VENTURE I, L.L.C.
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Original 1 of 2
TABLE OF CONTENTS
Page
E XHIB IT LIS T ....................................................................................................................... iii
RECITALS: ...... .............................................................. ........ ..... ... ... .............. ......... ......... .... ...1
A G RE EME NT: ........................................................................................................................ 2
1. Rezoning and Development Plans................................................................................ 2
1.1. Development in Accordance with the Northwest Marana Area Plan, MDC,
the Specific Plan and Conceptual Block Plat...........................................................2
1.2. Rancho Marana Specific Plan.......... .......... .......................... ....................................2
1.3. Design Guidelines....................................................................................................2
1.4. Phasing of Development. ..... ....................................................................................2
1.5. Density.. ...................................................................................................................3
1.6. Farm Field Five. ........................................................................................................3
2. Infrastructure Improvements .................................... .......................... ......... ....... ...........3
2.1. Regional Public Infrastructure....................... ............................... ....... ............. .......3
2.2. Water Utilities..........................................................................................................4
2.2.1. Transfer of Grandfathered Water Rights .....................................................4
2.3. Sewer Facilities........................................................................................................4
2.4. Roadway Improvements..........................................................................................4
2.4.1. Moore Road.................................................................................................4
2.4.2. Lon Adams Road ................................... .................... .... ..............................4
2.4.3. Civic Center Drive.......................................................................................4
2.4.4. Vanderbilt Farm Boulevard........................................................... ..............4
2.4.5. Proportionate Financial Share......................................................................5
2.5. Barnett Linear Park..................................................................................................5
2.5.1. Park Improvement Contribution... ...............................................................5
2.6. Irrigation System......................................................................................................6
2.6.1. Cortaro-Marana Irrigation District ("CMID") ............................................6
2.7. School Improvement Contribution ........ ..................................................... .............6
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3.
Responsibility for Financing Infrastructure Improvements ...................................... 6
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4.
Cooperation and Alternative Dispute Resolution ....................................................... 6
4.1. Appointment of Representatives..............................................................................6
4.2. Timing......................................................................................................................6
4.3. Default; Remedies....................................................................................................6
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5.
Protected Develop men t Righ ts ............................................................... .............. ..... ... 7
5 .1. Purpose..................................................................................................................... 7
5.2. Future Impact Fees................................................................................................... 7
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6. Notices an d Filin gs . ....... .......... .................. ..................... .................. ................ ..... ........ 7
6.1. Manner of Serving .... .... ............... ............. ................... ... ... ... ................. ..................7
7. General Terms & Conditions ....................................................................................... 8
7.1. Term......................................................................................................................... 8
7 .2. Waiver. ..................................................................................................................... 9
7.3. Attorneys ' Fees........................................................................................................9
7.4. Counterparts.............................................................................................................9
7.5. Headings and Recitals..............................................................................................9
7.6. Exhibits....................................................................................................................9
7.7. Further Acts.............................................................................................................9
7.8. Future Effect........................................................................................................ ....9
7.8.1. Successors....................................................................................................9
7.9 . Termination Upon Sale to Public........................................................................... 1 0
7.10. No Partnership and Third Parties....................................................................... ....1 0
7.11. Other Instruments............... ............ ....... ............................................................. ....10
7.12. Imposition of Duty By Law ...................................................................................10
7.13. Entire Agreement. ......... .................. .......................................................................10
7.14. Amendment......................................................................................................... ...1 0
7.15 . Names and Plans.................................................................................................. ..11
7.16. Good Standing; Authority.............. .................................................... ................... .11
7.17. Severability............................................................................................. ............. ..11
7.18. Governing Law/Arbitration ...................................................................................11
7.19. Recordation........... ...... ........ ................... .................................... ............... ........... ..11
7.20. No Developer Representations................................................................. .............12
7.21. Approval.............................................................................................................. ..12
7 .22. Force Majeure....................................................................................................... .12
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EXHIBIT LIST
Exhibit # Description of Exhibit Prepared By
A Map of the property. Developer
B Legal description of the property Developer
C Rancho Marana Specific Plan Town
D Conceptual Block Plat Developer
D Cross-Section of Moore Road Developer
D Cross-Section of Lon Adams Road Developer
D Cross-Section of Civic Center Drive Developer
D Cross-Section of Vanderbilt Farms Blvd. Developer
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D Barnett Linear Park Developer
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (hereinafter "Agreement") is made by and between
the TOWN OF MARANA, an Arizona municipal corporation (hereinafter "Town"), and FCD
MARANA VENTURE I, L .L.C., an Arizona limited liability company (hereinafter "Developer"), its
successors and/or assigns.
RECITALS:
A. The Developer owns or will own approximately 494 acres of real property within the
corporate limits of the Town, as depicted on the map attached hereto as Exhibit "A" and legally
described on Exhibit "B" (hereinafter collectively referred to as the "Property").
B. The Developer intends to construct a master-planned community, including single-
family residences, commercial uses, and recreation/open space on the Property.
C. Pursuant to the Amended Rancho Marana Specific Plan, which was approved
February6, 1990 and amended on May 18,1999, (the "Specific Plan"), or as it maybe further
amended, in order to facilitate development of the Property as delineated in the Conceptual Block
Plat, attached hereto as Exhibit "D".
D. The future development of the Property shall be subject to, among other things, (i) the
Northwest Marana Area Plan and General Plan, (ii) conditions of the Specific Plan, and
(iii) Conceptual Block Plat, (iv) the Marana Development Code (including the written rules,
regulations, procedures and other policies relating to development of land, whether adopted by the
Mayor and Councilor by Town staff) (the "MDC"), all as amended from time to time, collectively
establishing, among other things, the type of land uses, location, density and intensity of such land
uses, and community character of the Property, and providing for, among other things, the
development of a variety of housing, recreation/open space and commercial opportunities.
E. The Developer and the Town desire that the Property shall be developed in
accordance with the MDC, the Ordinance, the Northwest Marana Area Plan and General Plan, and
the Conceptual Block Plat as amplified and supplemented by this Agreement. The parties
acknowledge that this Agreement is intended to be consistent with the foregoing, and operates to the
benefit of the Town, the Developer, and the public.
F. The parties understand and acknowledge that this Agreement is a "Development
Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S.
S 9-500.05, in order to facilitate the development of the Property by providing for, among
other things, conditions, terms, restrictions and requirements for the construction and
installation of public infrastructure as more particularly described herein, the phasing over time
of construction or development on the Property, and other matters related to the development
of the Property.
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G. The Town and the Developer acknowledge that the development of the Property
pursuant to this Agreement will result in planning and economic benefits to the Town and its
residents by, among other things, requiring development of the Property consistent with the
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MDC, the Specific Plan, the Northwest Marana Area Plan and General Plan, and the
Conceptual Block Plat.
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises
and agreements set forth herein, the parties hereto state, confirm and agree as follows:
AGREEMENT:
1. Rezoning and Development Plans.
1.1. Development in Accordance with the Northwest Marana Area Plan, MDC, the
Specific Plan and Conceptual Block Plat. Prior to the approval and execution of this
Agreement, the Town approved the Specific Plan. The Property shall be developed in
accordance with the Specific Plan, which, in conjunction with the Northwest Marana Area
Plan, the M DC and the Conceptual Block Plat, sets forth the basic I and uses, densities and
intensities of such land uses as presently authorized for the Property and development
regulations related thereto. Upon compliance by the Developer with the applicable
development review and approval procedures as set forth in the Specific Plan, the MDC and
other Town ordinances, rules, regulations and state laws, the Town agrees to approve or permit
such plans, specifications, and/or plats of or for the Property as may be requested by the
Developer and which are consistent with the Specific Plan, the Northwest Marana Area Plan,
the Conceptual Block Plat, and the MDC.
1.2. Rancho Marana Specific Plan. The Developer agrees to fulfill all conditions
outlined in the Specific Plan and as may be clarified by this Agreement or future amendments for
the Property.
1.3. Design Guidelines. In compliance with the Specific Plan, and in order to ensure
a high level of design, the Developer has included detailed community design guidelines (the
"Design Guidelines") with the Conceptual Block Plat. The Design Guidelines include, but are not
limited to, restricted fencing and subdivision design limitations.
1.4. Phasing of Development. The Developer intends to build the Property in six
phases (approximately 472.1 acres plus 22.3 acres of open space):
· Phase I is the portion of the Property which will include the approximate
69.4 acres known as Farm Field Five in the Conceptual Block Plat
(Exhibit "D").
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· Phase II is the portion of the Property that is identified as Blocks 1 and
13, approximately 74 and 21 acres respectively, as identified in Exhibit
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"D" .
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· Phase III is the portion of the Property that is identified as Block 2 in
Exhibit "D", approximately 98.2 acres.
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· Phase IV is the portion of the Property that is identified as Blocks 7 and
8 on Exhibit "D", having 24.0 and 23.8 acres respectively.
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. Phase V is the portion of the Property that is identified as Blocks 9, 10,
11 and 12 in Exhibit "D", 8.5 acres, 11.3 acres, 17.5 acres and 15.2
acres respectively.
. Phase VI is the portion of the Property that is identified in Exhibit "D"
as Blocks 3, 4, 5 and 6, 43.5 acres, 8.3 acres, 18.2 acres and 39.2 acres
respectively.
The Developer has the option of amending the phasing sequence at its discretion, with
the approval of the Town, except for the following: That portion of the Property
adjacent to the Town Civic Center, identified in the Conceptual Block Plat as Blocks 9,
10, 11 and 12, bordered on the north by Barnett Linear Park, on the west by Civic
Center Drive, on the east by Lon Adams Road, and the south by VanderbiIt Farms
Boulevard, which will not be developed with varying densities and/or uses prior to the
year 2008, unless they are developed with densities or land uses which are consistent
with those identified in Exhibit "D". The Town may request that the Developer amend
the phasing sequence at such time the Town demonstrates the need to accelerate some
of the infrastructure such as roads and drainage and Develop shall work with the Town
to affect such phasing as is reasonable.
1.5. Density. The Property is proposed to be developed as shown on the Conceptual
Block Plat. This includes approximately 241.6 acres as medium density residential,
approximately 101.5 acres medium-high density residential, approximately 11.3 acres high
density residential, approximately 8.5 acres commercial, approximately 1 09.2 acres
employment center, and approximately 22.3 acres open space. The Town and the Developer
agree that as the development of the Property proceeds in the phasing process, those parcels
located north of V anderbiIt Farms Boulevard may be developed at a lower density than that
which is shown on the Preliminary Block Plat, that lower density being medium density
residential. It is acknowledged that the portion 0 f the property identified as Phase V above
shall not be developed at a density lower than currently identified until at least 2008.
1.6. Farm Field Five. The Farm Field Five Final Plat can proceed independently of the
Final Block Plat of the Property pursuant to Marana Resolution No 2002-148 dated December 17,
2002.
2.
Infrastructure Improvements.
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2.1. Regional Public Infrastructure. The Public Infrastructure described in Section 2 of
this Agreement will be designed and constructed by Developer in order to serve the planned
development of the Property, but will also facilitate and support the ultimate development of the
larger land area that includes the Property (the "Regional Public I nfrastructure"). The Town
acknowledges that portions of the Regional Public Infrastructure will be provided as part of the early
phases of development of the Property, prior to the time when such public infrastructure facilities and
services would otherwise be required to serve completed phases of the development within the
Property and, therefore, prior to the time Developer might otherwise be required to provide or
contribute to the cost of same and prior to the time the expense of such public infrastructure facilities
and services otherwise would be justified by the phasing of development of the Property. Developer
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is willing to provide the Regional Public Infrastructure earlier than otherwise required for its private
development of the Property, and to have such Regional Public Infrastructure utilized to facilitate and
support development of the larger land area that includes the Property only if Developer can
complete development of the Property as provided for in this Agreement. The Town aclmowledges
this commitment by Developer and will reasonably cooperate to allow this development to proceed
pursuant to this Agreement.
2.2. Water Utilities. The Developer and the Town are currently negotiating a Water
Service Agreement, which sets forth the various agreements of the parties relating to, among other
things, the development, construction, dedication, ownership, and design of the water system which
shall serve the Property. This Water Service Agreement shall be entered into prior to recordation of
the Final Block Plat for the Property. The Town will act on the Water Service Agreement within a
reasonable time.
2.2.1. Transfer 0 f G randfathered Water Rights. As stated in the Water Services
Agreement, the Developer shall transfer to the Town all Type II non-Irrigation Rights, as prescribed
by the Arizona Department of Water Resources, the Irrigation Grandfathered Rights (IGR) water
rights on lands deeded to the Town pursuant to the Certificate of Grandfathered Water Rights. On
lands not deeded to the Town, extinguishment credits will be transferred to the Town on the
appropriate Department of Water Resources form. In exchange, the Town shall provide designation
of assured water supply and water service to the Property.
2.3 Roadway Improvements.
2.3.1. Moore Road. Moore Road is planned as a 250-foot right-of-way. A
cross-section of Moore Road is attached as Exhibit "E". The Developer will install
landscaping along the 20-foot wide buffer area on the north side of Moore Road pursuant to
Exhibit "E". These improvements will be installed contemporaneously with each development
block contiguous to Moore Road, and will be completed prior to the release of the assurances
posted to assure completion of the improvements set forth on the final plat for each
development block delineated on the Conceptual Block Plat.
2.3.2. Lon Adams Road. Pursuant to the Conceptual Block Plat, Lon Adams
Road will be a 90-foot right-of-way. A cross-section of Lon Adams is attached as Exhibit
"F". The Developer shall construct Lon Adams Road pursuant to Exhibit "F" in Phase III, or
as required and necessary to serve adjacent blocks to be developed.
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2.3.3. Civic Center Drive. The Developer will improve Civic Center Drive for
its entire length within its Property. Civic Center Drive will be a 9 O-foot right-of-way. A
cross-section of Civic Center Drive is attached as Exhibit "G". The improvements will be
completed in Phase IV, or as required and necessary to serve adjacent blocks to be developed.
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2.3.4. Vanderbilt Farms Boulevard. The Developer will improve Vanderbilt
Farms Boulevard for its entire length across the Property. Vanderbilt Farms Boulevard will be a
90-foot right-of-way. A cross-section of Vanderbilt Farms Boulevard is attached as Exhibit
"H". The improvements will be completed in four phases, or as required and necessary to serve
adjacent blocks to be developed.
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2.4.5. Proportionate Financial Share. Pursuant to the Specific Plan requiring
the Developer to contribute its proportionate financial share to regional transportation
improvements, completion of all improvements in Section 2.4 of this Agreement is deemed to
satisfy the Specific Plan. Nothing in this Section 2.4.5 precludes the Town from levying future
impact fees for transportation as otherwise permitted pursuant to this Agreement and other
laws.
2.4. Barnett Linear Park. It is the Developer's intent, which the Town acknowledges
and relies upon, to incorporate significant drainage / recreational facilities, including Barnett
Linear Park and trail system. Based on an estimated 1440 residential units, Developer shall
identify a minimum of 23 acres of public park land and trail system acceptable to the
Development Services Administrator and Parks and Recreation Director. The public park land,
trail system and associated facilities will primarily be incorporated into the Barnett Linear Park.
The Barnett Linear Park will be constructed in Phases II and III of the Property, in accordance
with the plan attached hereto as Exhibit "I". The construction and transfer of ownership of the
Barnett Linear Park pursuant to this Section 2.5, satisfies all requirements for retention
requirements for the residential portion 0 f t he Property, except for approximately 1 1 acres 0 f
additional retention area required as shown on the Conceptual Block Plat. Upon the Town's
completion of the Barnett Linear Park channel outside of the Property and providing positive
drainage into the Santa Cruz River, retention and detention requirements will not be necessary
for this Property. Conveyance of the right-of-way for construction of the Barnett Linear Park
within the Property will be dedicated to the Town as part of the Final Block Plat or twelve (12)
months after the approval of the Farm Field Five Final Plat, whichever is earlier.
2.4.1. Park Improvement Contribution. In addition to providing a minimum of 23
acres of public park land and trail system acceptable to the Development Services Director and Parks
and Recreation Director, a [$1,000] per subdivided residential lot (the "Park Improvement
Contribution") shall be due and payable at the time building permits are issued for each residential
lot. Such Park Improvement Contribution shall be utilized to improve the Barnett Linear Park and
Trail System within the Project. Town shall grant to Developer a credit against the Park
Improvement Contribution for Town approved expenses for Park and Trail System Improvements.
Eligibility of improvements to receive credit shall be determined by the Development Services
Administrator and Parks and Recreation Director. Park and Trail System improvements not eligible
for credit shall include grading and dirt work by the Developer.
2.4.2 Onsite Private Recreational Facilities. Within each platted block, private
recreational facilities shall be constructed on a site of not less than 185 square feet per residential
unit. Site and facility design shall be approved by the Town Parks and Recreation Director and
Development Services Administrator.
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2.5 Fire Protection. Prior to issuance ofthe certificate of occupancy for any dwelling
unit, the Developer shall have completed the process of having the Property annexed into a fire
district if the Property is already not annexed. The fire district must be capable of providing fire
prevention, fire suppression and other emergency services, and must be approved by the Town,
and such approval shall not be unreasonably withheld ifnot already annexed.
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2.6 Bank Protection: In satisfaction of Town Ordinance No. 99.02, Developer shall
pay $ 500.00 per acre 0 fa ffected property for b ank protection. T he Developer shall pay this
obligation on a block by block basis, prior to any release of any subdivision assurances for the
block.
2.7 Irrigation System. The Developer shall develop and construct an irrigation system,
acceptable to the Utility Director and Development Services Administrator, dedicated to the Town,
to distribute irrigation water throughout the Property.
2.71 Cortaro-Marana Irrigation District ("CMID"). In compliance with the
Specific Plan, the Developer is working with CMID to enter into a formal agreement concerning the
maintenance of the necessary irrigation system and well sites to perpetuate the ability for CMID to
have their users irrigate as necessary.
2.8 School Improvement Contribution. A [$1,200] per subdivided residential lot (the
"School Improvement Contribution") shall be due and payable at the time building permits are
issued for each residential lot. Town shall grant to Developer a credit against the School
Improvement Contribution for (i) Town approved educated-related equipment donated by Developer
and for (ii) Town approved real property donated by the Developer (to be valued at $25,000.00 per
acre). Eligibility of improvements to receive credit shall be determined by the Town Manager.
3. Responsibility for Financing Infrastructure Improvements. Upon request of the
Developer, the Town staff shall process any request for a Community Facilities District pursuant to
A.R.S. S 48-701, et seq. and the Town's Guidelines for Establishment of Community Facilities
Districts, and the Town Council shall reasonably consider such request for a Community Facilities
District.
4. Cooperation and Alternative Dispute Resolution.
4.1. Appointment of Representatives. To further the commitment of the parties to
cooperate in the progress of the Development, the Town and the Developer each shall designate
and appoint a representative to act as a liaison between the Town and its various departments and
the Developer. The initial representative for the Town (the "Town Representative") shall be
the Development Services Director, and the initial representative for the Developer shall be Mike
Carlier or, upon written notice to the Town, a replacement project manager to be selected by the
Developer. The representatives shall be available at all reasonable times to discuss and review
the performance of the parties to this Agreement and the development of the Property.
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4.2. Timing. The Town acknowledges the necessity for prompt review by the Town
of all plans and other materials (the "Submitted Materials") submitted by the Developer to the
Town hereunder or pursuant to any zoning procedure, permit procedure, or other governmental
procedure pertaining to the development of the Property and agrees to use its best efforts to
accomplish such prompt review of the Submitted Materials whenever possible.
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4.3. Default; Remedies. If either party hereto defaults (the "Defaulting Party") with
respect to any of such party's obligations hereunder, then the other party hereto (the "Non-
Defaulting Party") shall be entitled to give written notice in the manner prescribed in Section
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6.1 to the Defaulting Party, which notice shall state the nature of the default claimed and make
demand that such default be corrected. The Defaulting Party shall then have (i) twenty (20) days
from the date of such notice within which to correct such default if it can reasonably be corrected
by the payment of money, or (ii) sixty (60) days from the date of such notice to cure such default
if action other than the payment of money is reasonably required, or if any such non-monetary
default cannot reasonably be cured within sixty (60) days, then such longer period as may be
reasonably required, provided and so long as such cure is promptly commenced within such
period and thereafter diligently prosecuted to completion. If any such default is not cured within
the applicable time period(s) set forth above in this Section 4.3, then the Non-Defaulting Party
shall be entitled to commence an action at law or in equity in the Pima County Superior Court.
The parties hereto 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 the condition which existed
prior to Developer's development and improvement work, once implementation of this
Agreement has begun, money damages and remedies at law will likely be inadequate and that
specific performance will likely be appropriate for the enforcement of this Agreement. This
Section 4.3 shall not limit any other rights, remedies, or causes of action that either party may
have at law or in equity.
5. Protected Development Rights.
5.1. Purpose. One of the purposes of this Agreement is to establish legally protected
rights for the development of the Property in a manner which is consistent with the Northwest
Marana Area Plan, the MDC, the Specific Plan and the Conceptual Block Plat, in order to ensure
reasonable certainty, stability and f aimess tot he Developer 0 ver the term 0 f t his Agreement.
Toward this end, Developer and Town agree that the zoning designations granted by the Specific
Plan shall remain in effect and shall not be changed without the agreement of the Developer for
the term of this Agreement.
5.2. Future Impact Fees. In consideration for the roadway, parks, sewer, water and
irrigation improvements funded and/or constructed by Developer pursuant to this Agreement, in
the event the Town adopts an impact fee as set forth in A.R.S. S 9-463.05 for which Developer
has paid a voluntary fee or constructed improvements pursuant to Section 2 of this Agreement,
Developer shall be entitled to a credit for such contributions in an amount equal to either the
amount of such voluntary fee payments or the actual construction costs of such improvements, as
applicable.
6.
Notices and Filings.
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6.1. Manner of Serving. All notices, filings, consents, approvals and other
communications provided for herein or given in connection herewith shall be validly given, filed,
made, transmitted or served if in writing and delivered personally or sent by registered or
certified United States mail, postage prepaid, to (or to such other addresses as either party hereto
may from time to time designate in writing and deliver in a like manner):
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The Town:
Town of Maran a
Planning Director
13251 N. Lon Adams Road
Marana, Arizona 85653
With a copy to:
Daniel J. Hochuli, Esq.
Hochuli & Benavidez, P.C.
220 East Wetmore Rd., Suite 110
Tucson,Arizona 85705
The Developer:
FCD Marana Venture I, L. L. C.
c/o Donald M. Edwards
Edwards, Largay & Co., PLC
333 East Osborn Road, Suite 260
Phoenix, Arizona 85012
With a copy to:
Mike Carlier/Sandy Alter
Carlier Company
3561 E. Sunrise Drive, Suite 105
Tucson AZ 85718
With a copy to:
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Kyle Hettinger
Brown & Bain
2901 N. Central, Suite 2000
Phoenix AZ 85012-2788
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7.
General Terms & Conditions.
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7.1. Term. This Agreement shall become effective upon its execution by all the
parties and the taking effect of a duly adopted resolution of the Town's governing body
approving the Agreement (the "Effective Date"). The term of the Agreement shall commence
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upon 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 twenty-five (25) years from
the date of this Agreement. If the parties determine that a longer period is necessary for any
reason, the term ofthis Agreement may be extended by written acknowledgment executed by the
parties.
7.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver
thereof, and no waiver by the Town or the Developer of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other covenant or condition of this Agreement.
7.3. Attorneys' Fees. In the event any party hereto finds it necessary to bring an
action at law or other proceeding against any other party to enforce any of the terms, covenants
or conditions hereof, or by reason of any breach of default hereunder, the party prevailing in
any such action or other proceeding shall be paid all reasonable costs and reasonable attorneys'
fees by the other party, and in the event any judgment is secured by said prevailing party, all
such costs and attorneys' fees shall be included therein, such fees to be set by the court and not
by jury.
7.4. Counterparts. T his Agreement may bee xecuted in two 0 r 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.
7.5. Headings and Recitals. The descriptive headings of the sections of this
Agreement are inserted for convenience 0 nly and sh all not control or affect the meaning 0 r
construction of any of the provisions hereof. The Recitals set forth at the beginning of this
Agreement are hereby acknowledged and incorporated herein and the parties hereby confirm
the accuracy thereof.
7.6. Exhibits. Any exhibit attached hereto shall be deemed to have been
incorporated herein by this reference with the same force and effect as if fully set forth in the
body hereof.
7.7. Further Acts. Each of the parties hereto shall execute and deliver all such
documents and perform all such acts as reasonably necessary, from time to time, to carry out
the matters contemplated by this Agreement. Without limiting the generality of the foregoing,
the Town shall cooperate in good faith and process promptly any requests and applications for
plat or permit approvals or revisions, and other necessary approvals relating to the
development of the Property by the Developer and its successors.
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7.8. Future Effect.
7.8.1. Successors. All of the provisions hereof shall inure to the benefit of and
be binding upon the successors, assigns and legal representatives of the parties hereto, except
as provided in Section 7.9 below. To the extent permitted by law, the Developer's rights
hereunder may be freely assigned by a written instrument, approved by the Town and recorded
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in the Official Records of Pima County, Arizona, expressly assigning such rights.
Notwithstanding the foregoing to the contrary, obligations of the Developer hereunder shall be
binding upon anyone owning any right, title or interest in the Property, provided such
obligation has been specifically assumed in writing and such writing has been approved by the
Town and recorded in the Official Records of Pima County, Arizona. The Town understands
that the Developer may create one or more entities or subsidiaries wholly owned or controlled
by the Developer, the individuals that currently control Developer or Mike Carlier (each, an
"Affiliate") for purposes of carrying out the development of the Property as contemplated in
this Agreement. In the event of a complete assignment by Developer of all rights and
obligations of Developer hereunder, Developer's liability hereunder shall continue unless
released by the Town by written instrument.
7.9. Termination Upon Sale to Public. It is the intention of the parties that although
recorded, this Agreement shall not create conditions or exceptions to title or covenants running
with the land. Nevertheless, in order to alleviate any concern as to the effect of this Agreement
on the status of title to any of the Property, this Agreement shall terminate without the
execution or recordation of any further document or instrument as to any lot which has been
finally subdivided and individually (and not in "bulk") leased (for a period of longer than one
year) or sold to the end purchaser or user thereof and thereupon such lot shall be released from
and no longer be subject to or burdened by the provisions of this Agreement.
7.10. 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 Developer and the Town. No term or provision of this Agreement is
intended to, or shall, be for the benefit of any person, firm, organization or corporation not a
party hereto, and no such other person, firm, organization or corporation shall have any right or
cause of action hereunder.
7.11. Other Instruments. Each party hereto sh all, promptly upon the request 0 f t he
other, have acknowledged and delivered to the other any and all further instruments and
assurances reasonably requested or appropriate to evidence or give effect to the provisions of
this Agreement.
7.12. Imposition of Duty By Law. This Agreement does not relieve any party hereto
of any obligation or responsibility imposed upon it by law.
7.13. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof. All prior and contemporaneous
agreements, representations and understanding of the parties, oral or written, are hereby
superseded and merged herein.
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7.14. Amendment. The Town and the Developer agree to cooperate and in good faith
pursue any amendments to this Agreement that are reasonably necessary to accomplish the
goals expressed in the MDC, the Specific Plan and the Conceptual Block Plat, and to facilitate
the development of the Property in light of any changes in development requirements,
including an extension of the term of this Agreement as provided in Section 7.1. If the
Developer determines that it would be beneficial to amend this Agreement to include adjacent
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lands owned by the Developer (or any Affiliate), the Town agrees to consider in good faith
such amendment. All amendments to this Agreement shall be in writing and, if approved, must
be signed by all appropriate parties. Within ten (10) days after any amendment to this
Agreement, such amendment shall be recorded by, and at the expense of, the party requesting
the amendment, in the Official Records of Pima County, Arizona.
7.15. Names and Plans. The Developer shall be the sole owner of all names, titles,
plans, drawings, specifications, ideas, programs, designs and work products of every nature at
any time developed, formulated or prepared by or at the instance of the Developer in
connection with the Property or any plans; provided, however, that in connection with any
conveyance of portions of the infrastructure as provided in this Agreement such rights
pertaining to the portions of the infrastructure so conveyed shall be assigned to the extent that
such rights are assignable, to the appropriate governmental authority.
7.16. Good Standing: Authority. The Developer represents and warrants to the Town
that it is duly formed and validly existing under the laws of Arizona. The Town represents and
warrants to the Developer that it is an Arizona municipal corporation duly qualified to do
business in the State of Arizona and is in good standing under applicable state laws. Each of
the parties hereto represents and warrants to the others that the individua1(s) executing this
Agreement on behalf of the respective parties are authorized and empowered to bind the party
on whose behalf each such individual is signing.
7.17. Severability. If any provision of this Agreement is declared void or
unenforceable, such provision shall be severed from this Agreement, which shall otherwise
remain in full force and effect. If any applicable law or court of competent jurisdiction
prohibits or excuses either party from undertaking any contractual commitment to perform any
act hereunder, this Agreement shall remain in full force and effect, but the provision requiring
such action shall be deemed to permit that party to take such action at its discretion. If,
however, such party fails to take the action specified hereunder, the other party shall be
entitled to terminate this Agreement.
7.18. Governing Law/Arbitration. 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. In particular, this Agreement is
subject to the provisions of A.R.S. 938-511. This Agreement has been negotiated by separate
legal counsel for the Town and the Developer, and no party shall be deemed to have drafted
this Agreement for purposes of construing any portion of this Agreement for or against any
party. Any dispute, controversy, claim or cause of action arising out of or relating to this
Agreement shall be settled by submission of the matter by both parties to binding arbitration in
accordance with the rules of the American Arbitration Association and the Arizona Uniform
Arbitration Act, A.R.S. 9 12-501, et seq., and judgment upon the award rendered by the
arbitrator(s) may be entered in a court having jurisdiction thereof.
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7.19. Recordation. No later than ten (10) days after this Agreement has been executed
by the Town and the Developer, it shall be recorded in its entirety, by, and at the expense of,
the Developer, in the Official Records of Pima County, Arizona.
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7.20. No Developer Representations. Except as specifically set forth herein, nothing
contained herein shall be deemed to obligate the Town or the Developer to complete any part or
all of the development of the Property.
7.21. Approval. If any party is required pursuant to this Agreement to give its prior
written approval, consent or permission, such approval, consent or permission shall not be
unreasonably withheld or delayed.
7.22. Force M aieure. If any party hereto shall be unable to 0 bserve or perform any
covenant or condition herein by reason of "force majeure," then the failure to observe or perform
such covenant or condition shall not constitute a default hereunder 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 here, 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 mind of the
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 the party hereto unfavorable to.
such party, shall not constitute failure to use its best efforts to remedy such a condition.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year written
below.
Date: O{J/llL ~ a(J~3
AITEST:
TOWN OF MARANA
an Arizona municipal corporation
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APPROVED AS TO FORM AND AUTHORITY
The foregoing Agreement has been reviewed by the undersigned attorney who has determined that it
is in proper form and within the power and authority granted under the laws of the State of Arizona
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Attorney for Town of Maran a
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Date: ~c.. ~ t 2..oo~
FCD Marana Venture I, L.L.c., an Arizona
limite ',\bility comp(\l '1
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Its 1ttA./I AS c.r
STATE OF ARIZONA )
'Iv. ,,' ) ss.
County oflJJfLV ('1-[)1{ )
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@ The foregoing document w'f' sworn to and "c~owledged befo~ me the ,!~ day of
(=--'iL JU..- , 2003, by Ui'1I11d'1}1 'idilJald1of Fl7J lnMt1Jt'd)e~, an
Ariz na cPfrjclrMiPft. i .
LLC ;[;, /;){JllLh!2 It /'Valle
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My commission expires:
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MAADRCUlY
IrCamnL fII*IIlDl 23. -
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Exhibit A
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Exhibit B
CASE NO. 408061
Parcel I
That portion of the South Half of Section 26, Township 1 ~"..south, Range 11 East, Gila and Salt River Base and
Meridian, Pima County, Arizona, lying Southerly and Westerly of that portion conveyed to Cortaro-Marana
Irrigation District in Docket 1985 at page 243.
EXCEPT the South 30 feet within the right of way of Grier Road #112 (Moore Roa~) as shown in Book 2 of Roa~
Maps at page 126;
AND EXCEPl' the West 30 feet within the right of way of Postvale Roact #28 as shown in Book 1 of Road Maps at
page 70.
AND EXCEPT that portion conveyed to the Town of Marana by peed recorded In Docket 9014 at page 1524, more
particularly described as follows:
BEGINNING at the Northwest comer of the Southwest Quarter of said Section 26, Township 11 South, Range 11
East; .
THENCE North 89 degrees 45 minutes 37 seconds East, along the North line of said Southwest Quarter of
Section 26, a distance of 1605.05 feet to a point in the Southwest right of way line of Interstate Highway 10;
THENCE South 49 degrees 36 minutes 21 seconds East, along sa'~ Southwest right of way line, 47.90 feet;
THENCE Northwesterly along a curve concave to the South having a radius of 25.00 feet and a central angle of
41 degrees 38 minutes 02 seconds, 18.17 feet;
THENCE South 89 degrees 45 minutes 37 seconds West parallel to and 25.00 feet South of the North line of said
Southwest Quarter, 1569.80 feeti
THENCE Southerly along a cUlVe concave to the Southeast having a radius of 25.00 feet and a central angle of
89 degrees 51 minutes 26 seconds, 39.21 feet;
THENCE South 89 degrees 45 minutes 37 seconds West, 30.00 feet to a point In the West line of said Southwest
Quarter of Section 26;
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THENCE North 0 degrees 05 minutes 49 seconds West, 49.941eet to the POINT OF BEGINNING, EXCL.UDING
THEREFROM any portions previOUSly dedicated as public right of way.
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The South Half of Section 27, Township 11 South, Range 11 East, Gila and Salt River Base and Meridian, Pima
County, Arizona.
EXCEPT the East 30 feet within the right of way of Postvale ~oa~ #28 as shown in aook 1 of Road Maps at page
70;
Exhibit B Continued
AND EXCEPT the South 30 feet within the right of way' of Grier Road #112 (Moore Road) as shown.in Book 2 of.
Road Maps at page 127;
AND EXCEPT the West 30 feet within the right of way of Grier Road #117 (Sandarlo Road) as shown In Book 2 of
Road Maps at page 174;
AND EXCEPT the North 25 feet within the right of way of Bartlett Road as shown In Book 14 of Roa.d Maps at
page 21.
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EXHIBIT C
Due to size restrictions for documents requiring recordation, the Rancho
Marana Specific Plan has not been included in this development
agreement. It is available for review during normal business hours at the
Marana Town Hall. Please contact the Town Clerk's office at 520-682-3401
or townclerk@marana.com for further information.
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