HomeMy WebLinkAboutResolution 2004-049 development agreement relating to willow ridge developmentMARANA RESOLUTION NO. 2004-49
RELATING T O DEVELOPMENT; APPROVING A ND AUTHORIZING THE EXECUTION
OF A DEVELOPMENT AGREEMENT RELATING TO THE WILLOW RIDGE DEVELOP-
MENT PROJECT.
WHEREAS, the Town of Marana is authorized to enter into development agreements and
pre-annexation development agreements pursuant to A.R.S. § 9-500.05; and
WHEREAS, the Mayor and Council of the Town of Marana find that entering into a de-
velopment agreement with CPE Development Company, Inc. and the three underlying landown-
ers relating to the Willow Ridge development project will promote the public health, safety and
welfare by facilitating orderly development that pays its fair share of costs toward public services
needed to serve the development.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Ma-
rana, Arizona, approving and authorizing the Mayor to execute the "Willow Ridge Develop-
ment Agreement" in the form attached as Exhibit A to this Resolution, and authorizing the Town
Manager and Town staff to undertake all other tasks required to carry out the terms, obligations,
and objectives of the development agreement.
PASSED A ND ADOPTED B Y T HE MAYOR A ND COUNCIL O F THE TOWN OF
MARANA, ARIZONA, this 20th day of April, 2004.
ATTEST:
APPROVE
~Cas/
D AS TO FORM:
04-20-04 Res 2004-49 Willow Ridge.doc 4/12/2004 5:11 PM FJC
F. ANN RODRIGUEZ, RECORDER
RECORDED BY: TF~
DEP,-_'l RECORDER
8047 PE2
DOCKET: 12292
PAG~ 6664
NO. j PAGES: 13
SEQUENCE: 20040841065
04/30/2004
AG 16:45
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
MAIL
AMOUNT PAID
$
12.00
WILLOW RIDGE DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("this Agreement") is made by and among the TOWN OF
MARANA, an Arizona municipal corporation (the "Town"), CPE DEVELOPMENT COMPANY, INC.,
an Arizona corporation (the "Developer"), Richard R. Gentry, Sr. & Geneva R. Gentry, as
Trustees of THE RICHARD R. GENTRY, SR. & GENEVA R. GENTRY TRUST V/A DTD 8/22/00 (the
"Gentrys"), CORTARO ROAD 20 ACRES 7226, a partnership (the "7226 Partnership"), and
MESSINGER/LEwIN F AMIL Y, LLC, an Arizona limited liability company ("Messinger"). The
Gentrys, the 7226 Partnership and Messinger are collectively referred to in this Agreement as the
"Landowners." The Landowners and the Developer are collectively referred to in this Agreement
as the "Applicants." The Town and the Applicants are collectively referred to in this Agreement
as the "Parties," who are sometimes individually referred to as the "Party."
RECITALS
A. The Landowners own approximately 104.6 acres of land located on the south side of
Cortaro Farms Road east and west of Camino de Oeste alignment (portions of the Southwest
Quarter and the Northwest Quarter of the Southeast Quarter of Section 25, Township 12 South,
Range 12 East), more specifically Tax Code Parcels 221-15-023B, 221-15-023A, 221-16-026B
and 221-16-026C, as more particularly described in the legal description attached as Exhibit A to
Marana Ordinance No. 2004.07 (the "Property").
B. The Developer has an option to purchase portions of the Property and has applied to
rezone the entire Property with the consent and authority of the Landowners.
C. The Property was annexed into the Town limits by Ordinance No. 2004.05, adopted
March 16, 2004.
D. The Applicants intend to develop and improve the Property as the Willow Ridge project,
an environmentally sensitive single family residential subdivision with a neighborhood
commercial center.
E. The Parties intend for the Property to be developed in a manner consistent with the
following, as amplified and supplemented by this Agreement, all of which together are referred
to as the "Applicable Development Regulations":
i) The Marana Development Code (including the written rules, regulations, procedures,
and other policies relating to development of land, whether adopted by the Mayor and
Councilor by Town Staff) (collectively the "Marana Development Code"), 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, commercial and recreation/open space opportunities.
ii) The conditions of Marana Ordinance No. 2004.07, approved on April 20, 2004 (the
"Rezoning") .
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F. The Town and the Applicants acknowledge that the development of the Property pursuant
to this Agreement will result in planning and economic benefits to the Town and its residents.
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G. The Applicants have made and by this Agreement will continue to make a substantial
commitment of resources for public and private improvements on the Property.
H. 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. ~ 9-500.05.
1. This Agreement is consistent with the portions of the Town's General Plan applicable to
the Property.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and
agreements set forth in this Agreement, the Parties hereby agree as follows:
Article 1. Development Plans
1.1. Development Review. The Property shall be developed in a manner consistent with the
Applicable Development Regulations, which together establish the basic land uses, and the
densities, intensities and development regulations that apply to the land uses authorized for the
Property. Upon the Applicants' compliance with the Applicable Development Regulations, the
Town agrees to issue such permits or approvals for the Property as may be requested by the
Applicants.
1.2. Zoning and Plat Conditions. The Applicants agree to fulfill all conditions outlined in the
Applicable Development Regulations.
1.3. Archaeological/Historic Resources. Development of the Property shall meet all Town
requirements set forth in Title 2 and Title 20 of the Marana Development Code related to
Archeological and Historic Resources.
1.4. Site Built Construction and Building Permits. All construction on any portion of the
Property, whether sold in bulk or individually, whether subdivided or not, shall be site built and
shall require building permits.
Article 2. Infrastructure
2.1. Transportation Impact Fee. The Property is located in the Marana South Transportation
Benefit Area, requiring the payment of the Marana South Transportation Development Impact
Fee for all development located on the Property. The current Marana South Transportation
Development Impact Fee is $2,435 per "equivalent demand unit" as established by Marana
Ordinance No. 2001.02 for residential development. In addition, Applicants agree to pay to the
Town upon the issuance of permits for commercial buildings a transportation impact fee in the
larger of the following: (a) the amount that would have been payable to Pima County if the
Property had not been annexed, or (b) the amount payable under the then-existing Marana South
Transportation Development Impact Fee, if it is modified to include non-residential
development.
2.2. Open Space. Park and Trail System Contribution: The Applicants shall contribute
$6,400 to the Town of Marana for each residential lot, payable upon the issuance of a building
permit for construction of a residence on that lot, to be used to acquire, maintain, enhance and
improve lands in the general vicinity of the Property for the purposes of passive recreation, open
space preservation, habitat restoration and disturbance mitigation. The lands to be acquired,
maintained, enhanced and improved with this contribution shall include essentially undeveloped
natural landscape such as ridges, washes, and scenic buffer areas. Such projects may include
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Santa Cruz River Park Nodes, Continental Ranch wash re-vegetation, parcel mitigation and
preservation/enhancements of wildlife and equestrian corridors.
2.3. Cortaro Road Design and Construction Costs. The Developer shall contribute at least
$700,000 toward the design and construction of Cortaro Road, as follows:
2.3.1. The Developer shall hire and pay all fees and costs for a qualified civil engineer to
design the improvement of Cortaro Road to a four lane divided cross-section from the Union
Pacific Railroad Crossing to Camino de Oeste, with a transition to the existing two-lane
cross-section at Star Grass Drive.
2.3.2. The Developer shall pay the Town $50,000 upon the issuance of a building permit
for a commercial use at the southwest comer of Cortaro Road and Camino de Oeste to be
used for regional drainage solutions that benefit the Property.
2.3.3. Upon award of the contract for construction of Cortaro Road from the Union
Pacific Railroad Crossing to Star Grass Drive, the Developer shall pay the Town the
difference between $700,000 and the sum of the Cortaro Road design costs incurred pursuant
to paragraph 2.3.1 above and the payment (if any) to the Town pursuant to paragraph 2.3.2
above; provided, however, that if the sum of the amounts incurred and paid by the Developer
pursuant to paragraphs 2.3.1 and 2.3.2 above exceed $700,000, no additional payment to the
Town shall be required under this subparagraph.
2.3.4. The Developer shall be reimbursed for any amounts paid by the Developer under
this paragraph 2.3 out of the Town construction sales (transaction privilege) tax devoted to
transportation generated from and paid to the Town as a result of construction activity
occurring on the Property.
2.4. Water Utilities. Prior to the approval of the Final Plat for the Property, the Applicants
shall enter into a Water Service Agreement with the Town of Marana 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, including
necessary storage and welles) necessary to serve the Property. The Town will act on the Water
Service Agreement within a reasonable time.
2.4.1. Transfer of Grandfathered Water Rights. The Applicants shall transfer to the
Town, 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 appropriate Department of Water
Resource form. In exchange, the Town shall provide designation of assured water supply
and water service to the Property.
2.4.2. Exception for Existing Exempt Well. Nothing in this paragraph 2.4 shall affect the
continued operation of the existing exempt well owned and operated for domestic use by the
Gentrys, provided that its use is consistent in nature and quantity to the use existing prior to
this Agreement.
2.5. Wastewater. The Applicants shall construct the necessary sewer system to serve the
Property. The sewer system shall be in conformance with, and subject to, the requirements of
Pima County Wastewater Management and the Town, and shall be designed and constructed at
sole cost of the Applicants.
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2.6. Onsite Private Recreational Facilities. Within each platted residential block or parcel,
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 & Recreation
Director and Development Services Director.
2.7. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the
Property, the Applicants shall have completed or shall provide evidence to the Town's
satisfaction that the Applicants have made a diligent effort to complete the process of having the
Property annexed into a fire district.
2.8. School Land. In lieu of the dedication ofland for schools needed to serve the Property,
the Applicants shall 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 3. Environmental Sensitivity
3.1. Protection of Undisturbed Areas During Construction. The Applicants shall install
construction fencing to assure that all areas required to remain in their undisturbed natural state
are protected during construction. Except as specifically modified by the terms of this
Agreement, the Applicants shall comply with all Town grading requirements.
3.2. Common Areas: Natural Open Space. Common areas and any areas to be preserved as
natural open space or undisturbed areas as shown on any plats or development plans relating to
all or any portion of the Property may be placed in the permanent ownership and control of
(i) one or more homeowners associations established by declarations of restrictive covenants
recorded over all or part of the Property or (ii) a government or conservation entity the Town
reasonably determines is willing and able to permanently maintain the areas as required by this
Agreement.
Article 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 of the Property, the Town and the Applicants each shall
designate and appoint a representative to act as a liaison between the Town and its various
departments and the Applicants. The initial representative for the Town (the "Town
Representative") shall be the Development Services Administrator, and the initial representative
for the Applicants shall be Raul F. Pifia or a replacement to be selected by the Applicants. 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.
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 Applicants 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.
4.3. Default: Remedies. If either Party defaults (the "Defaulting Party") with respect to any
of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party")
shall be entitled to give written notice in the manner prescribed in paragraph 7.1 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 days from the date of
the notice within which to correct the default if it can reasonably be corrected by the payment of
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money, or (ii) thirty days from the date of the notice to cure the default if action other than the
payment of money is reasonably required, or if the non-monetary default cannot reasonably be
cured within sixty days, then such longer period as may be reasonably required, provided and so
long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to
completion. If any default is not cured within the applicable time period set forth in this
paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration
proceedings set forth in paragraphs 4.4 and 4.5 below. 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 Applicants' 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 wi11likely 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.
4.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve
between themselves, the Parties agree that there shall be a forty-five day moratorium on
arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding
mediation before commencement of arbitration. The mediation shall be held under the
commercial mediation rules of the American Arbitration Association. The matter in dispute shall
be submitted to a mediator mutually selected by Applicants 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 Applicants shall request the presiding judge of the Superior Court in and for the
County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected
shall have at least five years' experience in mediating or arbitrating disputes relating to real
estate development. The cost of any such mediation shall be divided equally between the Town
and the Applicants. The results of the mediation shall be nonbinding on the Parties, and any
Party shall be free to initiate arbitration after the moratorium.
4.5. Arbitration. After mediation (paragraph 4.4 above) any dispute, controversy, claim or
cause of action arising out of or relating to this Agreement shall be settled by submission of the
matter by the Parties to binding arbitration in accordance with the rules of the American
Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. S 12-501 et seq., and
judgment upon the award rendered by the arbitrator(s) may be entered in a court having
jurisdiction.
Article 5. Protected Development Rights
To establish legally protected rights for the development of the Property in a manner
consistent with this Agreement and the development regulations that now apply to the Property
and to ensure reasonable certainty, stability and fairness to the Applicants over the term of this
Agreement, the Town shall not change the development regulations that now apply to the
Property, as amended by this Agreement, for a period of five years after the execution of this
Agreement without the consent of the Applicants. Pursuant to A.R.S. S 9-1203, the Town hereby
finds that the size, type and phasing of the development on the Property and the level of
investment of the Applicants justify a two-year time extension of these protected development
rights, and a two-year time extension is hereby automatically granted, provided that Applicants
are not in material breach of this Agreement at the end of the initial five-year term.
Article 6. Future Impact Fees
If the Town adopts an impact fee for the same infrastructure for which Applicants have
contributed land or made improvements or paid a voluntary fee pursuant to this Agreement,
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Applicants shall be entitled to a credit for such contributions as set forth in A.R.S. ~ 9-463.05.
The Parties acknowledge that the Town currently does not have an adopted impact fee for any of
the other public improvements for which the Applicants are contributing land, making
improvements or paying voluntary fees pursuant to this Agreement, and that the impact fee
required to be paid pursuant to paragraph 2.1 above provides funding for the construction of the
Twin Peaks/I-10 interchange improvements.
Article 7. Notices and Filings
7.1. Manner of Serving. All notices, filings, consents, approvals and other communications
provided for in or given in connection with this Agreement shall be validly given, filed, made,
transmitted or served if in writing and delivered personally or sent by registered or certified
United States mail, postage prepaid, if to (or to such other addresses as either party hereto may
from time to time designate in writing and deliver in a like manner):
To the Town:
Town of Marana
Town Manager
13251 N. Lon Adams Road
Marana, Arizona 85653
To the Developer:
CPE DEVELOPMENT COMPANY, INC.
Raul F. Pifia
1555 E. Broadway Blvd.
Tucson, Arizona 85719
To the Gentrys:
Mr. & Mrs. Richard R. Gentry, Sr.
4945 W. Cortaro Farms Road
Tucson, Arizona 85742
To the 7226 Partnership:
CORTARO ROAD 20 ACRES 7226
Victor Cuevas, Manager
c/o Jose Rincon/Long Realty
6410 E. Tanque Verde
Tucson, Arizona 85715
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To Messinger:
MESSINGER/LEWIN F AMIL Y, L.L.C.
Jay Messinger, Manager
9351 Kostner Avenue
Skokie, Illinois 60076
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Article 8. General Terms and Conditions
8.1. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that
right or remedy, and no waiver by the Town or the Applicants of the breach of any covenant of
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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.
8.2. Term. This Agreement shall become effective upon the effective date of the Rezoning
(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 Applicants shall be entitled to
terminate this Agreement if the Town materially impairs the development entitlements on the
Property granted by this Agreement.
8.3. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of
the terms, covenants or conditions of this Agreement, or by reason of any breach or default of
this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys'
fees by the other Party, in an amount determined by the court and not by the jury.
8.4. 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.
8.5. Headings and Recitals. The descriptive headings of this Agreement are inserted for
convenience only and shall not control or affect the meaning or construction of any of the
provisions of this Agreement. The Recitals set forth at the beginning of this Agreement are
hereby acknowledged, confirmed to be accurate and incorporated here.
8.6. 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.
8.7. Further Acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter contemplated by this
Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good
faith and process promptly any requests and applications for plat or permit approvals or
revisions, and other necessary approvals relating to the development of the Property by the
Applicants and their successors.
8.8. Future Effect.
8.8.1. Time Essence and Successors. Time is of the essence of this Agreement. All of
the provisions of this Agreement shall inure to the benefit of and be binding upon the
successors, assigns and legal representative of the Parties, except as provided in
paragraph 8.8.2 below. Notwithstanding the foregoing, to the extent permitted by law, the
Applicants' rights under this Agreement may only be assigned by a written instrument,
agreed to by all of the Parties and recorded in the Official Records of Pima County, Arizona,
expressly assigning such rights, and no obligation of the Applicants 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 Applicants may create one or more entities or subsidiaries wholly
owned or controlled by the Applicants for purposes of carrying out the development of the
Property as contemplated in this Agreement, and the Town's consent to the Applicants'
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assignment of its rights under this Agreement to such entities or subsidiaries shall not be
withheld. In the event of a complete assignment by Applicants of all rights and obligations
of Applicants under this Agreement, Applicants' liability under this Agreement shall
terminate effective upon the assumption of those liabilities by Applicants' assignee, provided
that the Town has approved the assignment to such assignee, which approval shall not
unreasonably be withheld.
8.8.2. Termination Upon Sale to Public. It is the intention of the Parties that although
recorded, this Agreement shall not create conditions or exceptions to title or covenants
running with the land, unless specifically noted above. Nevertheless, in order to alleviate any
concern as to the effect of this Agreement on the status of title to any of the Property, this
Agreement shall terminate without the execution or recordation of any further document or
instrument as to any lot which has been finally subdivided and individually (and not in
"bulk") leased (for a period of longer than one year) or sold to the end purchaser or user and
thereupon such lot shall be released from and no longer be subject to or burdened by the
provisions of this Agreement.
8.9. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between the Applicants 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.
8.10. Other Instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all further instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
8.11. Imposition of Duty by Law. This Agreement does not relieve any party hereto of any
obligation or responsibility imposed upon it by law.
8.12. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous
agreements, representation and understanding of the Parties, oral or written, are hereby
superseded and merged in this Agreement.
8.13. Amendments to Agreement. No change or addition shall be made to this Agreement
except by a written amendment executed by the Parties. The Parties agree to cooperate and in
good faith pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Final Plat and Specific 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.
8.14. Names and Plans. The Developer shall be the sole owner of all names, titles, plans,
drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at
any time developed, formulated or prepared by or at the instance of the Developer in connection
with the Property or any plans; provided, however, that in connection with any conveyance of
portions of the infrastructure as provided in this Agreement such rights pertaining to the portions
of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to
the appropriate governmental authority.
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8.15. Good Standing: Authority. The Developer represents and warrants to the Town that it
is duly formed and validly existing under the laws of Arizona and is authorized to do business in
the state of Arizona. The Landowners represent and warrant to the Town that they are duly
formed and validly existing entities under the laws of Arizona and are authorized to enter into the
obligations imposed upon them by this Agreement the Town represents and warrants 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.
8.16. Severabilitv. 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 Applicants shall be entitled to terminate this
Agreement.
8.17. Governing Law. This Agreement is entered into in Arizona and shall be construed and
interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration 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 4.5, requiring disputes to be resolved by binding
arbitration.
8.18. Interpretation. This Agreement has been negotiated by the Town and the Applicants,
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.
8.19. Recordation. The Town shall record this Agreement in its ,entirety in the office of the
Pima County Recorder no later than ten days after it has been executed by the Town and the
Applicants.
8.20. No Development Representations. Except as specifically set forth in this Agreement,
nothing contained in this Agreement shall be deemed to obligate the Town or the Applicants to
complete any part or all of the development of the Property.
8.21. 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.
8.22. 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
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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.
8.23. Conflict ofInterest. This Agreement is subject to A.R.S. ~ 38-511, which provides for
cancellation of contracts in certain instances involving conflicts of interest.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
THE TOWN:
THE TOWN OF MARANA, an Arizona
municipal corporation
-~'~
~: BO~~Y-U . on, Jr., Mayor
Date: (14 /;2I///~'i
I I
ATTEST:
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THE DEVELOPER:
CPE DEVELOPMENT COMPANY, INC., an
Arizona corporation
~~
Date: --':It ;Z.t. ~'t
THE GENTRYS:
THE RICHARD R. GENTRY, SR. & GENEVA R.
GENTRY TRUST V/ A DTD 8/22/00
By:
By:
Date: +-.{2 6/ - & cf2 tJ ~
THE 7226 PARTNERSHIP:
CORTARO ROAD 20 ACRES 7226, a
partnership
BY:~..~
Victor Cuevas)1anager
Date: /fi0;/
-10- 4/20/2004 1: 17 PM
MESSINGER:
MESSINGER/LEWIN FAMILY, L.L.C., an
Arizona limited liability company
By:
Jay Messinger, Manager
Date:
STATE OF ARIZONA)
ss
County of Pima )
The foregoing instrument was acknowledged before me on 4, ~ t -0'-1 by Raul F.
Pifia, an authorized officer of CPE DEVELOPMENT COMPANY, INC., an Arizona corporation, on
behalf of the corporation.
STATE OF ARIZONA) ss
County of Pima )
The foregoing instrument was acknowledged before me on ~ 2..0 I 2fxj..( by Richard R.
Gentry, Sf. & Geneva R. Gentry, as Trustees of THE RICHA R. GENTRY, SR. & GENEVA R.
GENTRYTRUSTU/A DTD 8/22/00, on behalf of the Trust.
~.~
8 "'''c''co'^'
DARLENE M. HOUSTON
NOT ARY PUBLIC. 51 ATE OF ARIZONA
PIMA COUNTY
My Comm. Expires May 5, 2006
My commission expires:
'-hIo~ 6,. '2-00 b
My commission expires:
/IF I. t~6~
.~
STATE OF ARIZONA)
ss
County of Pima )
The foregoing instrument was acknowledged before me on () 'I/d..:J--/cf{tJtJ i by Victor
Cuevas, Manager of CORTAR . OF~=ner 'p, on behalf oft e partn<<ershiP.
__:: ~J:K:MSfateof ~ "on, 6
- 'PIMA .
. . My eo.~. ~ ~ _10,2000 Notary PublIc
OFFICIAL SEAL
(I LINDA L. FOUSSE
NOTARY PUBLIC - State of Alizona
PIMA COUN1Y
. My Comm. Expires April 1. 2008
t:=
i'-i
/
AGT 040420 Willow Ridge DA Final.doc
-11-
4/20/2004 1: 17 PM
MESSINGER:
MESSINGER/LEWIN F AMIL Y, L.L.C., an
Arizona limited liability company
~
essinger, Manager
d~~~
/ I
Date:
STATE OF ARIZONA )
ss
County of Pima )
The foregoing instrument was acknowledged before me on 4 - ':2. '-04 by Raul F.
Pifia, an authorized officer of CPE DEVELOPMENT COMPANY, INC., an Arizona corporation, on
behalf of the corporation.
STATE OF ARIZONA)
ss
County of Pima )
The foregoing instrument was acknowledged before me on Ar~F 2.D 2061 by Richard R.
Gentry, Sr. & Geneva R. Gentry, as Trustees of THE RICHARD R. GENTRY, SR. & GENEVA R.
GENTRY TRUST V/A DTD 8/22/00, on behalf of the Trust.
OFFICIAL SEAL
DARLENE M. HOUSTON
NOTARY PUBLIC. STATE OF ARIZONA
PIMA COUNTY
My ~~,mm Expires May 5, 2006
.~-
f) CLJ ./!/ottJl /h. ~~~1
Notary Public
My commission expires:
\..fr1Cu.j .. 5', '2.-(J D0
STATE OF ARIZONA)
ss
County of Pima )
OFFICIAL S L'
(I LINDA L. FOU SE
NOTARY PUBUC - State of AriZona
PIMA COUNlY
. My Comm. expires April 1. 2008
My commission expires:
11~ I J l-06~
The foregoing instrument was acknowledged before me on by Victor
Cuevas, Manager of COR TARO ROAD 20 ACRES 7226, a partnership, on behalf of the partnership.
6
My commission expires:
Notary Public
AGT 040420 Willow Ridge DA Final.doc
-11-
4/20/2004 1: 17 PM
r~
STATEOF~A )SS
County of-PIrmr" ) C iJdL
The foregoing instrument was acknowledged before me on (./ j{) / (}JJOf( by Jay
Messinger, Manager of MESSINGER/LEWIN F AMIL Y, L.L.C., an Arizona limited liability
company, on behalf of the LLC.
My 3/y~ tJE~:
~ /3'~
Notary Pubh
i "OFFICIAL SEAL" I
WENDI B. AYOUB
. NOTARY PUBLIC, STAfE OF ILUNOlS
MY COMMiSSION EXflIRES 3/4/2006
~"i:""'.,.,.......... .-.,-,..7..... ~:?'-- /"'-Y",..,'h ,''''' .,7',....,,,.,...,-,,....~,,~..,_:'\..,5-~,;.;'.-~..'
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AGT 040420 Willow Ridge DA Final.doc
-12-
4/20/2004 1: 17 PM