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HomeMy WebLinkAboutResolution 2004-098 development agreement regarding tangerine crossingMARANA RESOLUTION NO. 2004-98 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF A DEVELOPMENT AGREEMENT REGARDING THE TANGERINE CROSSING DEVELOPMENT PROJECT, AND DECLARING AN EMERGENCY. WHEREAS, the Tangerine Crossing development was annexed into the Town of Marana and the zoning translated to its Pima County equivalent by Ordinance No. 97.24 adopted August 5, 1997 but not effective until approved by the voters at a September 8, 1998 referendum election; and WHEREAS, the land uses, densities and disturbance permitted by the existing zoning of the Tangerine Crossing exceeds what the Town believes is appropriate for the area, based on recent environmental and development trends in the vicinity of the Tortolita Mountains; and WHEREAS, to avoid potential litigation over whether Town-adopted disturbance limitations could effectively be imposed on the already-zoned Tangerine Crossing property, the Town and the developer of Tangerine Crossing began settlement negotiations that have resulted in the preparation of the Tangerine Crossing Development Agreement; and WHEREAS, the Mayor and Council find that the terms and conditions of the Tangerine Crossing Development Agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Tangerine Crossing Development Agreement is hereby approved. SECTION 2. The Mayor is hereby authorized and directed to execute, and the Town Clerk is hereby authorized and directed to attest to, the Tangerine Crossing Development Agreement attached to and incorporated by this reference in this Resolution as Exhibit A, for and on behalf of the Town of Marana. SECTION 3. The various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this resolution. SECTION 4. It is necessary for the preservation of the peace, health and safety of the Town of Marana that this Resolution become immediately effective, so an emergency is hereby declared to exist and this Resolution shall he effective immediately upon its passage and adoption. [O0000010. DOC /] Resolution 2004-98 Tangerine Crossing DA - 1 - 7/1/2004 11:58 AM FdC PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 6th day of July, 2004. ATTEST: ~lYn C?l~onsonj Town Clerk APPROVE ) AS TO FORM: {O00000IO. DOC/} Resolution 2004-98 Tangerine Crossing DA - 2 - 7/1/2004 11.'58 AMFJC TANGERINE CROSSING DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("this Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and CHICAGO TITLE TRUST NO. 12133 and its beneficiary TANGERINE ROAD ASSOCIATES, an Arizona general partnership (collectively the "Developer"). The Town and the Developer are collectively referred to in this Agreement as the "Parties," and who are sometimes individually referred to as the "Party." RECITALS A. The Developer is the owner of approximately 301 acres of real property, within the corporate limits of the Town, as depicted on the map attached as Exhibit "A" and legally described on Exhibit "B" (the "Property"). B. On lanuary 5, 1988, the Pima County Board of Supervisors adopted Ordinance 1988- 11, rezoning the Property to "Forest City Specific Plan." The Forest City Specific Plan authorizes the development of 114 acres for residential use, with a maximum of 1,189 dwelling units; 111 acres for commercial use at a maximum floor area ratio ("FAR") of 1.0; and 35 acres for office use, at a maximum FAR of 1.0. C. On December 10, 1996, Pima County approved a final subdivision plat for the Property entitled "Tangerine Crossing," recorded at Book 49 of Maps and Plats, page 11, Pima County Recorder's office (the "Tangerine Crossing Final Plat"). D. On August $, 1997 the Mayor and Council of the Town adopted Ordinance No. 97.24, approving the "Tangerine Road/Thomydale Road Annexation," which included the Property, and translating the zoning of the Property to "Marana Zone of Specific Plan (F)." E. As a result of a successful referendum petition, Ordinance No. 97.24 was referred to the voters at a September 8, 1998 election. F. On September 15, 1998, the Pima County Board of Supervisors approved the official canvass of votes for the September 8, 1998 election, £mding that Ordinance No. 97.24 was approved by 61.36% of the electors and making the Tangerine Road/Thornydale Road Annexation effective. G. Before the Town's annexation of the Property, Pima County approved and recorded in November 1996 the Tangerine Crossing Block Plat and Covenants, Conditions & Restrictions. Contemporaneously, Pima County approved a Master Sewer Basin Study, a Master Drainage Analysis, Vegetation Inventory and Salvage Plan, Master Traffic Analysis, Archeological Study, and a Transportation Financing Plan. On December 17, 1996, thc City of Tucson Water Department approved the Water Master Plan and committed to serve the Property based on the assurance of a 100-year water supply. H. On October 24, 2000, the Mayor and Council of the Town adopted Ordinance No. 2000.19, acknowledging that the Town intended for the Pima County Forest City Specific Plan to be adopted and rcdesiguated as the Town of Marana Forest City Specific Plan when the ProperW was annexed. The Town of Marana Forest City Specific Plan is referred to in this Agreement as the "Forest City Specific Plan." T he Forest City Specific Plan adopted by the Town confirmed the maximum density limitations of thc plan approved by Pima County. Pursuant to the Forest City Specific Plan, the Developer dedicated 8 acres of additional right-of- way for Tangerine Road. { O0000012.DOC /] 1596323 TANGERFNE CROSSING DEVE£OPMENTAGREEMENT -1- 6/21/04 DRAFT I. Following annexation of the Property by the Town, the Town on April 25, 2002, issued a grading permit to the Developer, pursuant to the recorded Block Plat, and approved grading plans, roadway plans, an addendum to the drainage studies, stormwater pollution prevention plans and nativ~ vegetation salvage plans. J. In November 2003, the Town began proceedings to restrict the permissible disturbance of natural vegetation on the Property, in a manner the Town believes is more consistent with existing development t rends a nd environmental considerations i n t he vicinity o f t he Property. This proposed change, described as the Bajada Environmental Resource Overlay District ("BEROD"), would have the effect of limiting the Property's development potential otherwise allowed by the Forest City Specific Plan. K. The Parties prefer to avoid Town-initiated changes that affect the Forest City Specific Plan, including BEROD, by reaching agreement concerning the development of the Property as provided in this Agreement. L. This Agreement is a "Development Agreement" under A.R.S. § 9-500.05. M. The following are among the Town's development regulations that now apply to the Property (the "Pre-Existing Regulations"): i) The Forest City Specific Plan. ii) Conditions of the Developer's Preliminary Block Plat for Tangerine Crossing approved by Pima County. iii) The Tangerine Crossing Final 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 Council or by Town Staff) (collectively the "Marana Development Code"). N. The Pre-Existing Regulations notwithstanding, the Developer and the Town desire that the Property be developed in a manner consistent with the Marana Development Code existing on the Effective Date (which shall not include BEROD, either as presently proposed or subsequently adopted), as amplified and supplemented by this Agreement. The Parties further desire that the development of the Property will generally proceed in accordance with the land uses shown on the Tangerine Crossing Concept Plan attached to this Agreement as Exhibit "C" (the "Concept Plan"). Collectively these governing documents are referred to in this Agreement as the "Development Regulations." O. 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. P. The Developer has made, and by this Agreement will continue to make, a substantial commitment of resources for public and private improvements on the Property. Q. This Agreement is consistent with the portions of the Town's General Plan that apply to the Property. {O0000012.DOC /} 1~9~32 3 TANGEPd'NE CROSSING DEFELOPMENTAGREEMENT -2- 6/21/04 DR~FT .4 GREEMENT Now, THEKEFOP,~,'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. Minimum Residential Lot Size. No residential lot on the Property shall be less than six thousand (6,000) square feet in size. Article 2. Environmental Sensitivity and Site Disturbance 2.1. Site Disturbance Restriction. The Developer shall disturb no more than 150.5 acres, (50% of the Property). For purposes of this requirement, disturbed areas shall include, without limitation, any disturbance associated with emergency access, utilities, easements, onsite roadways, constructed drainageways, homesites, driveways, landscaping, or any other development activity that will occur or has already occurred on the Property. Town-approved unsurfaced pedestrian recreational trails within undisturbed natural open space areas shall not be considered disturbed areas for purposes of this requirement. Disturbance associated with offsite improvements to Tangerine or Thomydale Roads shall be excluded for purposes of determining the area of disturbance. 2.2. Identification of Undisturbed Areas. Before the issuance of any grading permit or other approval that would otherwise allow the Developer to remove vegetation fi:om the Property, the Developer shall identify the portions of the Property anticipated to remain in their undisturbed natural state with such maps or other documentation as are reasonably acceptable to the Town. As development and development approvals occur for the Property, the specific locations of undisturbed natural areas, and the maps or other documentation associated with it, may be modified with the written reasonable consent of the Town, provided that the Developcr shall at all times remain in compliance with paragraph 2.1 above. 2.3. Protection of Undisturbed Areas During Construction. The Developer 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 Developer shall comply with all Town grading requirements. 2.4. Permanent Maintenance of Undisturbed Natural Areas. With the exception of recreational trails constructed in undisturbed natural areas as provided in paragraph 2.1 above, undisturbed natural areas set aside as required by this Article shall be permanently maintained in their undisturbed natural state. 2.5. Ownership and Control of Undisturbed Natural Areas. Not later than when construction begins on the last substantial phase of the Property's development, the undisturbed natural areas set aside and maintained as required by this Article shall 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 undisturbed natural areas as required by this Article. 2.6. Compliance with State and Federal Laws and Regulations. No approval, permit or authorization of the Town authorizes thc Developer to violate any applicable federal or state laws {O0000012.DOC/] 15~6323 TANGERINE CROSSING DEYELOPMENTAGREEMENT -3- 6/21/04 DRAFT or regulations, or relieves the Developer from the responsibility to ensure compliance with all applicable federal and state laws and regulations, including but not limited to the Endangered Species Act and Clean Water Act. Article 3. Development Plans. 3.1. Development Review. The Property shall be developed in a manner consistent with the Development Regulations, which together e stablish t he basic 1 and uses, a nd t he densities, intensities and development regulations that apply to the land uses authorized for the Property. Upon the Developer's compliance with the applicable development review and approval procedures and substantive requirements of the Development Regulations, the Town agrees to issue such permits or approvals for the Property as may be requested by the Developer. 3.2. Development Conditions. The Developer agrees to fulfill all conditions and requirements for the Property outlined in the Development Regulations. 3.3. Revised Plat. Anything to the contrary notwithstanding, the Developer may submit and the Town shall approve a revised subdivision plat for all of the Propertybased upon the Concept Plan attached as Exhibit "C", as long as it meets the requirements of the Development Regulations. 3.4. Commercial Area. The Town acknowledges the existing land use entitlement for a commercial land use designation for an area not to exceed 40 acres at the northeast comer of Tangerine Road and Thomydale Road as shown on the Concept Plan, subject to the site disturbance restriction imposed by Article 2 of this Agreement. The Developer may submit and the Town shall approve a Development Plan for the commercial area in accordance with the Development Regulations, providing for two access driveways onto Tangerine Road and three access driveways onto Thomydale Road. The Town shall have the right to require an additional twenty-five (25) feet of right-of-way on Tangerine Road (but not improvements) to provide right-of-way for a frontage road if the Developer utilizes direct access to the commemial area from Tangerine Road. 3.5. Archaeolog/cal/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. 3.6. 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 4. Infrastructure. 4.1. Wastewater. The Developer 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 Developer. 4.2. Park and Trail System Contribution. The Developer shall contribute to the Town $1,400.00 p er residential u nit for development by t he T own o f required public p ark and t rail system facilities, due and payable at the time a building permit for the residential unit is issued. 4.3. Roadway Improvements: Prior to the release of assurances for the first phase of the development, the developer shall construct interim transportation improvements to Tangerine {00000012.DOC/} 1~96~ 3 TANGEMNE CROSSiNG DEVELOPMENTAGREEMENT -4- 6/21/04 DR.4FF and Thomydale Roads. These interim improvements shall consist of widening to accommodate left mm lanes for the two "collector road" entrances shown on the Concept Plan, associated shoulder widening and paving, and drainage improvements, as more specifically identified in an updated Master Traffic Analysis to be approved by the Town. 4.4. Regional Roadway Contribution. In satisfaction of the Forest City Specific Plan's requirement that the Developer negotiate a deyelopment agreement to address a "transportation improvement financing plan" and a "transportation implementation plan," the Developer shall contribute $3,500.00 per residential unit, due and p~tyable upon the issuance of the building permit, to the Town's transportation fund. This contribution shall be credited against any transportation impact fees adopted by the Town for the purposes of funding regional transportation improvements. The Developer shall receive a credit against any future transportation impact fees for the previous dedication of right-of-way for Tangerine Road, and any additional dedication as required under Article 3.4, based on the value of the land at the time of dedication. The Town shall require no further dedication of right-of-way for Thomydale Road. 4.5. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the Property, the Develop~ shall have completed or shall provide evidence to the Town's satisfaction that Developer has made a diligent effort to complete the process of having the Property annexed into a fire district. 4.6. Voluntary Contribution in Lieu of School Land Dedication. Developer 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. 4.7. Potable Water Service. The Town acknowledges the existence of that certain Water Service Agreement entered into between Lawyer's Title of Arizona, Inc. Trust Nos. 7804-T and 7805-T (Dove Mountain) and the City of Tucson which provides for the service of potable water to the Property, and will not condition approval of Developer's subdivision, development plan or building permit applications upon the use of potable water supplied by the Town. Article 5. Cooperation and Alternative Dispute Resolution. 5.1. AppoinOuent 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 Administrator, a nd t he initial representative for t he Developer s hall b e Dean Wingert or a replacement 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. 5.2. 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. {00000012.DOC/] 159632.3 TANGEP, JNECROSSINGDEVELOPMENTAGREEMENT -5- 6/21/04 DRAFT 5.3. 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 Article 8 to the Defaulting Party, which n6tice 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 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 m~iy 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 5.4 and 5.5 below. The Parties agree that due to the size, nature and scope of the Property's development contemplated by this Agreement, and due to the fact that it may not be practical or possible to restore the Property to its condition 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 enfomement of this Agreement. This paragraph shall not limit any other rights, remedies, or causes of action that either party may have at law or in equity. 5.4. 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 t he P as'ties agree t o attempt t o settle t he dispute b y n onbinding mediation before commencement of arbitration. The mediation shall be held under the commemial mediation rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by Developer 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 Developer 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 Developer. The results of the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 5.5. Arbitration. After mediation (paragraph 5.4 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 both Parties to binding arbitration in accordance with the rules of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. § 12-501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. Article 6. Assured Development Rights To establish legally protected rights for the development of the Property in a manner consistent with the Development Regulations and to ensure reasonable certainty, stability and fairness to the Developer and the Town over the term of this Agreement, the Developer and the Town agree that the Development Regulations shall remain in effect and shall not be changed for a period of seven (7) years after the execution of this Agreement without the agreement of the {O0000012.DOC /] 1596323 TANGERINE CROSSING DEVELOPMENT A GREEMENT -6- 6/21/04 DRAFT Developer; provided, however, that the land use designations shown on the Concept Plan and their allowed density/intensity shall not be altered for a period of ten (10) years without the agreement of the Developer. Article 7. Future Impact Fees If the Town adopts an impact fee for the same infi'astructure for which Developer has contributed land or made improvements or paid a voluntary fee pursuant to this Agreement, Developer shall be entitled to a credit for such contributions as set forth in A.R.S. § 9-463.05. Article 8. General Terms ~nd Conditions. 8.1. 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 fi:om 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: Tangerine Road Associates Attn: Dean Wingert 333 East Wetrnore Road, Suite 250 Tucson, Arizona 85705 8.2. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter b e v did for all purposes o n t he twentieth anniversary o f t he E ffecfive D ate. If t he 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. 8.3. Waiver. No delay in exercising any fight or remedy shall constitute a waiver of that right or remedy, 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. 8.4. 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 attomeys' fees by the other Party, in an amount determined by the court and not by the jury. 8.5. 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 fi:om one or more counterparts may be removed fi:om such [O0000012.DOC /] 159632 ~ TANGERINECROSSINGDEVELOPMENTAGREEMENT -7- 6/21/04 DRAFT 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. 8.6. 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 begirming of this Agreement are hereby acknowledged, confirmed to be accurate and incorporated here. 8.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. 8.8. Further Acts. Each of the Parties shall execute and deliver all documents and perform all acts as reasonably necessary, from time to time, to carry out the matter contemplated by this Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by the Developer and its successors. 8.9. Future Effect. 8.9.1. Time Essence and Successors. Time is of the essence of this Agreement. All of the provisions of this Agreement shall inure to the benefit of and be binding upon the successors, assigns and legal representative of the Parties, except as provided in paragraph 8.9.2 below. Notwithstanding the foregoing, to the extent permitted by law, the Developer's rights under this Agreement may only be assigned by a written instrument and recorded in the Official Records of Pima County, Arizona, expressly assigning such rights, and no obligation of the Developer 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. In the event of a complete assignment by Developer of all rights and obligations of Developer under this Agreement, Developer's liability under this Agreement shall terminate effective upon the assumption of those liabilities by Developer's assignee. 8.9.2. 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 nmning 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 insmunent 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 fi.om and no longer be subject to or burdened by the provisions of this Agreement. 8.10. 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 to this Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement. {O0000012.DOC /} t $9632 3 TANGERINE CROSSING DEVELOPMENTAGREEMENT -8- 6/21/04 DRAFT 8.11. Other Instruments. Each Party shall, promptly upon the request of the other, have acknowledged and delivered to the other any and all further instruments and assurances reasonably request or appropriate to evidence or give effect to the provisions of this Agreement. 8.12. Imposition of Duty by Law. This Agreement does not relieve any party hereto of any obligation or responsibility imposed upon it by law. 8.13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in this Agreement. 8.14. Amendments to Agreement. No change or addition shall be made to this Agreement except by a written amendment executed by the Parties. The Parties agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in 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. 8.15. 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 infi'astmcture as provided in this Agreement such rights pertaining to the portions of the infi'astmcture so conveyed shall be assigned to the extent that such rights are assignable, to the appropriate governmental authority. 8.16. Good Standing; Authority. The Developer represents and warrants to the Town that it i s duly formed a nd validly existing u rider t he 1 aws o f Arizona a nd i s authorized to d o business in the state of Arizona. The Town represents and warrants to the Developer 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. 8.17. Severability. If any provision ofth/s Agreement is declared void or unenfomeable, 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 Developer shall be entitled to terminate this Agreement. 8.18. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 5.5, requiring disputes to be resolved by binding arbitration. TANGERINECROS$1NGDEVELOPMENTAGREEMENT -9- 6/21/04 DRAFT 8.19. Interpretation. This Agreement has been negotiated by 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. 8.20. Recordation. The Town shall record this Agreement in its entirety in the office of the Pima County Recorder no later than ten days after its has been executed by the Town and the Developer. 8.21. No Developer Representations. Except as specifically set forth in this Agreement, nothing contained in this Agreement shall be deemed to obligate the Town or the Developer to complete any part or all of the development of the Property. 8.22. Approval. If any Party is required pursuant to this Agreement to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. 8.23. Force Majeure. If any Party shall be unable to observe or perform any covenant or condition of this Agreement by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Agreement so long as such Party shall use its best effort to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition can be cured within a reasonable amount of time. "Force majeure," as used in this paragraph, means any condition or event not reasonably within the control of such party, including without limitation, "acts of God," strikes, lock-outs, or other disturbances of employer/employee relations; acts of public enemies; orders or restraints of any kind of government of the United States or any state thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of people; explosions; and partial or entire failure of utilities. Failure to seffie 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. 8.24. Conflict of Interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. {O0000012.DOC /] t59632.3 TANGERINECROSS1NGDEVELOPMENTAGREEMENT -10- 6/21/04 DRXFr IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: DEVELOPER: THE TOWN OF MARANA, an Arizona municipal corporation CHICAGO TITLE INSURANCE COMPANY, a Missouri Corporation, as Trustee under Trust No. 12133, as Trustee only and not in its. corporate capacity By: Bobby Sutton, Jr., Mayor Date: By: Title: Date: ATTEST: Jocelyn C. Bronson, Clerk ~?PROVED AS TO FORM: TANGERINE ROAD ASSOCIATES, an Arizona general partnership By: FOREST CITY TANGERINE, INC., an Arizona corporation Its: Managing Partner By: Frank Cassidy, Town Attorney Title: Date: STATE OF ARIZONA ) SS County of Pima ) The foregoing instrument was acknowledged before me on by , Trust Officer of Chicago Title Insurance Company, a Missouri Corporation, on behalf of that corporation in its capacity as Trustee under Trust No. 12133 and in no other capacity. My commission expires: Notary Public [O0000012.DOC /] 1596323 TANGER1NECROSSINGDEVELOPMENTAGREEMENT -11- 6/21/04 DP. AFT STATE OF ~t~RIZONA ) SS County of Pima ) The foregoing instrument was acknowledged before me on by Dean Wingert, Vice President of Forest City Tangerine, Inc., an Arizona corporation, on behalf of the corporation. My commission expires: Notary Public {O0000012.DOC /] 159632.3 TANGERINE CROSSING DEVELOPMENTAGREEMENT -12- 6/21/04 D,V. JFr Exhibits A and B for the Tangerine Crossing Development Agreement were not available at the time of distribution. JCB