HomeMy WebLinkAboutResolution 2003-065 pre-annexation and development agreement for saguaro ranchMARANA RESOLUTION NO. 2003-65
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, APPROVING A PRE-ANNEXATION AND
DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF MARANA AND
SAGUARO RANCH, L.L.C.
WHEREAS, the Town of Marana ("Town") and Saguaro Ranch, L.L.C.
("Developer") desire to Annex the Developer's 592 acres into the Town;
WHEREAS, Developer and the Town desire to facilitate the development and
improvement of the property as an integral part of the Town; and
WHEREAS, the Town believes that it will derive substantial economic,
environmental, educational and other benefits by virtue of the development and
improvement of the property by Developer, which will include additional sources of
revenue to the Town, additional employment for the Town's residents and the
preservation of natural wildlife habitat, while requiring the town to provide limited
services; and
WHEREAS, the Mayor and Council have determined that approval of the
Agreement, attached hereto as Exhibit A and incorporated herein by this reference, is in
the best interest of the Town and its residents.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town
of Marana that the agreement, attached hereto as Exhibit A, is hereby approved, and
Town officers and staff are authorized to execute the Agreement and take all steps
necessary and proper to carry out its intents and purposes.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana,
Arizona, this 17th day of June, 2003.
M~TTON, JR.
Mama, Arizona Resolution No. 2003-65 -- Page 1 of 2
ATTEST:
APPROVED AS TO FORM:
As Town Attorney and not personally
Marana, Arizona Resolution No. 2003-65 -- Page 2 of 2
LEGAL DESCRIPTION
TOWN OF MARANA ANNEXATION
SAGUARO RANCH SOUTH PARCEL
All that portion of Sections 20 and 29, Township 11 South, Range 13 East, Gila
and Salt River Meridian, Pima County, Arizona more particularly described as
follows:
COMMENCING at the NW corner of said Section 29;
Thence N 89°41'40" E, along the north line of said Section 29, a distance of
1985.43 feet to the POINT OF BEGINNING;
Thence continuing along the north line of said Section 29 N 89°41'40" E, along
the north line of said Section 29, a distance of 661.80 feet to the North ¼ corner
of said Section 29;
Thence N 00°00'22'' E a distance of 723.53 feet;
Thence S 78°38'45' W a distance of 675.04 feet;
Thence N 00°00'22'' W a distance of 723.68 feet;
Thence N 89°44'57" E a distance of 661.96 feet;
Thence N 89°45'39'' E a distance of 1324.72 feet;
Thence S 00°03'46" W a distance of 1317.63 feet to the north line of said Section
29;
Thence S 00°00'11" E a distance of 659.51 feet;
Thence S 00°00'59' E a distance of 660.06 feet;
Thence S 89°42'32'' W a distance of 1323.83 feet;
Thence S 00°01'58" E a distance of 330.16 feet;
Thence S 84°56'27'' W a distance of 664.48 feet;
Thence S 84°47'14' W a distance of 664.33 feet;
Thence N 00°01'45' W a distance of 772.36 feet;
Thence N 00°03'02'' E a distance of 330.35 feet;
Thence N 89°41 '30" E a distance of 661.89 feet;
Thence N 00°00'23'' W a distance of 660.51 feet to the north line of said Section
29, and the POINT OF BEGINNING.
Containing 5,749,873 Sq. ft. or 132.00 Acres more or less.
LEGAL DESCRIPTION
TOWN OF MARANA ANNEXATION
SAGUARO RANCH NORTH PARCEL
All that portion of the West % of Section 17 and the West % of Section 20,
Township 11 South, Range 13 East, Gila and Salt River Meridian, Pima County,
Arizona more particularly described as follows:
COMMENCING at the SW corner of said Section 20;
Thence N 89°41'40" E, along the south line of said Section 20, a distance of
1051.92 feet to the POINT OF BEGINNING;
Thence N 00000'33" W a distance of 271.02 feet;
Thence N 89026'20" E a distance of 79.44 feet;
Thence N 00°50'16" E a distance of 516.43 feet;
Thence $ 89°37'18" W a distance of 858.45 feet;
Thence N 00035'03" W a distance of 20.26 feet;
Thence S 89036'49" W a distance of 280.75 feet to the west line of said Section
20;
Thence N 00002'20" W, along the west line of said Section 20, a distance of
1830.53 feet to the West % comer of said Section 20;
Thence N 00°03'11" E, along the west line of said Section 20, a distance of
2637.57 feet to the Northwest corner of said Section 20;
Thence N 00°02'10" E, along the west line of said Section 17, a distance of
2640.27 feet to the West % comer of said Section 17;
Thence N 00°01'16" E a distance of 1317.72 feet to the North 1/16 corner of
Sections 17 and 18;
Thence N 89°42'15" E a distance of 1322.94 feet to the Northwest 1116 corner of
said Section 17;
Thence N 00002'08" E a distance of 659.39 feet;
Thence N 89o43'20'' E a distance of 1322.68 feet a point on the North-South mid-
line of said Section 17;
Thence S 00o00'33" VV along the North-South mid-line of said Section 17 a
distance of 2971.03 feet;
Thence S 89o38'32" VV a distance of 1060.34 feet;
Thence S 00°01'26" VV a distance of 1643.87 feet to a point on the South line of
said Section 17;
Thence N 89°40'15" E a distance of 1060.23 feet to the North ¼ corner of said
Section 20;
Thence S 00o00'20'' E along the North-South mid-line of said Section 20 a
distance of 1320.43 feet;
Thence S 00003'27'' W a distance of 388.45 feet;
Thence S 00°17'36" E a distance of 107.65 feet;
Thence S 00°01 '25" W a distance of 824.23 feet;
Thence S 00°01 '34" W a distance of 330.16 feet;
Thence S 45°04'07" W a distance of 934.76 feet;
Thence N 00°01'25" E a distance of 329.01 feet;
Thence S 89°45'16" W a distance of 662.38 feet;
Thence S 00000'30" E a distance of 657.88 feet;
Thence S 00°01 '26" W a distance of 279.76 feet;
Thence S 00°00'48" E a distance of 1040.16 feet;
Thence S 89°41'40" VV a distance of 271.66 feet to the POINT OF BEGINNING.
Containing 20,076,815.73 Sq. ft. or 460.90 Acres more or less.
Saguaro Ranch Development Agreement
THIS PRE-ANNEXATION AND DEVELOPMENT AGREEMENT (hereinafter
"Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal
corporation (hereinafter "Town") and Saguaro Ranch, L.L.C., an Arizona Limited
Liability Company (hereinafter "Developer").
WHEREAS,
A. The Developer is the owner of approximately 592 acres of real property, located
within Pima County, Arizona, as legally described on Exhibit "Saguaro Ranch South
Parcel and North Parcel" (hereinafter referred to as the "Property") and the Town desires
that the properties be annexed into the corporate limits of the Town and become an
integral part of the Town.
B. Developer and the Town desire to facilitate the development and improvement of
the Property as an integral part of the Town. The Town believes that it will derive
substantial economic, environmental, educational and other benefits by virtue of the
development and improvement of the Property by Developer; which is believed to
include additional sources of revenue to the Town, additional employment for the Town's
residents and the preservation of natural wildlife habitat while requiring the town to
provide limited services.
C. The Town and the County intend to partner to seamlessly transfer County zoning
and requirements imposed on this property to provide regional consistency and benefits
in the public's best interest. Developer intends to develop and improve portions of the
Property into an environmentally sensitive single family residential subdivision with
private streets and shall not disturb more than 20% of the property over the entire project
area. In addition, a portion of the Property will be developed into a guest ranch, or minor
resort, consistent with a smaller, village-like development for the homes located therein.
D. The Developer has agreed to financial and other contributions to Pima County,
referenced in this agreement, the Developer will honor a 2% addition to the
Environmental Enhancement bed tax contribution for open space, dedication of trail
easements and trailheads to Pima County, and monetary contributions for open space,
parks and transportation.
E. The future development of the Property shall be subject to the rules and
regulations applicable to the Property, including but not limited to the following:
1) Conditions of the Developer's preliminary block plat (the "Preliminary
Plat"), approved by Pima County and attached as Exhibit
2)
The Marana Development Code (including the written rules,
regulations, procedures, and other policies relating to development of
land, whether adopted by t he Mayor and Council or by Town Staff)
(hereinafter the "MDC"), collectively establishing, among other
things, t he type o f 1 and uses, 1 ocation, density a nd intensity o f 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.
F. The Developer and the Town desire that the Property shall be developed in
accordance with the Translation Zoning, Preliminary Plat, and MDC, 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.
The Town and the Developer agree to enter into discussions about a Community
Facility District for community infrastructure improvements that can only happen by
statute in an incorporated area of a municipality pending passage of this annexation.
COVENANTS
In consideration of the foregoing recitals, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Town and Developer
agree as follows:
Annexation. The Town has initiated the annexation process by filing a blank
annexation petition with the Pima County Recorder consistent with the requirements
of Section 9-471 of the Arizona Revised Statutes and all other applicable laws,
ordinance and rules ("The Annexation Laws"), to annex the property into the Town.
The Town, in a timely fashion, published, mailed and posted the required notices to
hold a public hearing, as required under the Annexation Laws in connection with
annexation of the Property into the Town. Following the public heating and the
proper steps expressed A.R.S 9-471 the Developer shall sign and deliver annexation
petitions for the Property. It is understood by the parties that the Town Council
retains the discretion to approve or deny the annexation ordinance.
Original Zoning. The land uses that are conducted and zoned on the Property in Pima
County prior to annexation translate to RD-180 Residential Zone in the Town's Land
Use and Development Code. The annexation laws require the Town to translate the
zoning for the Property from the lawful uses, activities and zoning in Pima County to
Town zoning u pon annexation without permitting densities o r uses t hat are greater
than those permitted in Pima County prior to annexation. In order to establish
original Town zoning which is consistent with the current lawful uses of the Property,
and which minimizes non-conforming uses, upon annexation the Town shall impose
RD-180 Residential Zone on the property.
To the extent the uses and activities conducted on the Property in Pima County prior
to annexation are authorized by law, the Town recognizes such lawful uses as legal
nonconforming uses, and agrees that such uses may be continued as legal
nonconforming uses after the property in annexed into the Town.
Development Plans.
1.1 Development Review. The Property shall be developed in accordance
with the Town approved Translation Zoning, the Preliminary Plat, Final Plat, and MDC,
which set forth the basic land 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 MDC and other Town Ordinances, rules, regulations and
state laws, the Town agrees to approve or issue such permits, plans, specifications, and/or
plats of or for the Property as may be requested by the Developer and which are
consistent with the Translation Zoning, Preliminary Plat, and MDC.
1.2 Amendments to Agreement. 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 Translation Zoning,
Preliminary Plat, the Final Plat and MDC. Any amendment to the Agreement shall be
approved and recorded pursuant to Section 8.13 hereof.
1.3 Archaeological/Historic Resources. This development of this Property
shall meet all Town requirements set forth in Title 2 and Title 20 of the Marana Town
Code related to Archeological and Historic Resources.
1.5 Review of Building Permits. All residential dwelling units shall be site
built. This subsection shall apply to all land within the Property, whether sold in bulk or
individually, whether subdivided or not, and shall apply to each and every lot and shall
run with the land.
2. On-Site Infrastructure.
2.1 Water Utilities. It is understood that the Developer has secured Water
Utilities through Tucson Water. The developer must show proof of this agreement to the
Town before the Town will issue any building permits.
2.2 Wastewater. The Developer shall secure the necessary sewer system to
serve the Property. The sewer system shall be in conformance with, and subject to, the
requirements of Arizona Department of Environmental Quality and the Town, and shall
be designed and constructed at sole cost of the Developer.
2.3 Onsite Private Recreational Facilities. Current ordinances of the Town
require land contributions from the Developer towards a private park within the Property
at t he r ate o f 1 85 square feet therefor p er s ingle family u nit. T he Developer's private
natural trail system through the property and the equestrian facility shall constitute
compliance with all private park requirements. In observance of the Developer
maintaining a total project disturbance o f 2 0% and t he 1 ogistics o f t he terrain and t he
area, the private natural trail system shall not carry a width requirement but upon final
platting must be approved by the Parks and Recreation Director. The Developer shall
receive a non-financial credit against such park requirements equal to the deemed width
of the private natural trail multiplied by the actual length thereof. Site and facility design
are normally approved by the Town Parks & Recreation Director and Development
Services Administrator and shall be for this project.
A. County Park Contribution
2.31 Community Improvements and Transportation Contributions The
Developer shall contribute $50,000 for every lot sold after lot 15 (up to $1,000,000) to
the County to be used for trail construction, open space, community improvements and
transportation needs in the area.
2.32 Regional Public Park/Trail System. The Developer shall work with the
Pima County to dedicate a trail easement to the County through the property for public
point of access to the Tortolita Mountain Park and approximately a 2.2-acre trailhead and
parking area that is accessible by a public road and deemed acceptable by the County
Administrator and the Developer. The Developer and the County are working together to
abandon its current trail easement through the property at which time the Developer will
contribute $50,000 dollars to the County for the construction and/or design of the trail.
All must be completed to the satisfaction of the Developer, the Town Manager and the
County Administrator before a Final Plat can be approved.
B. Marana Park Contributions
2.34 Park Improvement Contribution. In lieu of providing the minimum acres
of public park land as required by Town Ordinance, while recognizing the dedication of
the trail system acceptable to the Development Services Administrator 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
Parks and the Trail System within the project vicinity. The Town shall grant the
developer a pro-rated non-financial credit against the Park Improvement Contribution per
remaining non-permitted residential lots for Town approved expenses incurred by the
Developer for the Park and Trail System Improvements. These Park and Trail
Improvements will also be approved by the Development Services Administrator and the
Parks and Recreation Director. Park and Trail Improvements not eligible for credit
include grading and dirt work by the Developer.
2.35 Regional Recreational Facility Town Ordinance requires the Developer
to dedicate and develop a calculated acreage of parks per resident to the town for public
park facilities and trail system. In understanding the nature of the terrain and the interest
of the Town to maintain no more than a total project disturbance of 20%, the Developer
has agreed to contribute to a regional recreation facility in lieu of the public parks
requirement. Within four months of the Final Plat recordation, The Developer, for no
additional consideration, shall contribute $1,000,000 dollars that the Town, at its
discretion, will dedicate all or most of the funds toward a new regional recreation facility.
The lump sum payment shall be made no sooner than January 15, 2004 and no later than
June 1, 2004.
2.4 Roadway Improvements: Prior to approval of the Final Plat, the
Developer shall work with the Development Services Administrator to identify and agree
upon all roadway improvements needed for the project.
2.5 Fire Protection. Prior to issuance of the certificate of occupancy for any
dwelling unit, the Developer shall have completed the process of having the Property
annexed into Northwest Fire District.
2.6 School Site. $1,200 of the closing proceeds fi:om each initial sale of a
subdivided lot of the Property with a single family residence constructed thereon shall be
paid to the Town as a school site contribution. The provisions of this Section, in addition
to the other provisions hereof, shall be binding upon all grantees of all or any portion of
the Property.
2.7 Wide Wireless Area Network (WWAN) Contribution For the benefit of
the residents in the area and the Town of Marana, the Developer will install and
contribute necessary facilities for a Wide Wireless Area Network connection, including,
but not limited to infrastructure, power, receivers, connectivity and proper desert masking
of needed WWAN items.
2.8 Responsibility for Financing Infi:astmcture Improvements. Upon request of
the Developer, the Town staff shall process any request for a Community Facilities
District ("CFD") pursuant to ARS 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 CFD.
3. Environmental Sensitivity
3.1 Environmental Comphance The Developer shall remain in compliance
with the County's updated comprehensive plan and will not violate any protected peaks
or ridges in this area. The Developer shall establish a 10 year Natural Resource
Management Monitoring Program to monitor the effect of the development in this area.
3.2 Protection of Open Space. The Developer shall provide construction
fencing to protect all natural areas or other areas be kept in their natural state as is during
construction. The Developer shall not disturb more than 20% of the Property, including
areas for emergency access, easements, roadways and drainage ways. The Developer
shall comply with all Town grading requirements unless permitted otherwise herein.
3.3 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 conveyed to the
RME or other permitted entities for management; or may be protected by deed
restrictions, declarations of restrictive covenants, conservation easements, and
dedications.
3.4 Environmental Enhancement Contribution The Developer agrees to
add 2% Environmental Enhancement fee to the Bed Tax given to the County to be
allocated toward open space and conservation efforts, which shall be determined in a
separate agreement between the Developer and the County.
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
(hereinafter "Town Representative") shall be the Development Services Director, and the
initial representative for the Developer shall be Stephen Phirmey 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.
4.2 Timing. The Town acknowledges the necessity for prompt review by the
Town of all plans and other materials (hereinafter "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.
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 8.1 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 fi.om the date of such notice within which to correct such
default if it can reasonably be corrected by the payment of money, or (ii) thirty (30) days
fi.om 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 xvithin the
applicable time period(s) set forth above in this Section 6.4, 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 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. A substantial commitment of resources
have been made for public and private improvements such as but not limited to the water
system, Park Improvements, roads, open spaces, trails and site work. Therefore, 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 Preliminary Plat, the Plat
Resolution, the Improvement Plan, the Grading Plan, the MDC, and this agreement, in
order to ensure reasonable certainty, stability and fairness to the Developer and the Town
over the term of this agreement. Toward this end, the 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.
6. Future Impact Fees. In consideration for the roadway described in
paragraphs 2.4, sewer described in paragraph 2.2, water described in paragraph 2.1, and
recreational facilities described in paragraphs 2.3 & 2.6, in the event the Town adopts an
impact fee for the same infi'astructure for which Developer has contributed land and/or
made improvements and/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.
7. Notices and Filings.
7.1 Manner of Serving. All notices, filings, consents, approvals and other
communications provided for herein or given in connection herewith shall be vahdly
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):
The Town:
Town of Marana
Town Manager
13251 N. Lon Adams Road
Marana, Arizona 85653
With a copy to:
Daniel J. Hochuli, Esq.
Hochuli & Benavidez, P.C.
220 E. Wetmore Road, Suite 110
Tucson, Arizona 85705
The Developer:
Developer
8. General Terms and Conditions.
8.1 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 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 (20) years fi:om the date of the Agreement. If the parties determine that a longer
period is necessary for any reason, the term of this Agreement may be extended by
written acknowledgment executed by the parties.
8.2 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.
8.3 Attorney's 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, all such costs and attorneys' fees shall be
included therein, such fees to be set by the court and not by jury.
8.31 Legal Challenges The Developer shall bare any and all costs resulting
fi:om or pertaining to any legal challenges to the annexation of the parcel laid out in
Exhibit "Al" and "A2" of this document and any of the terms and conditions of this
agreement
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 fi:om one or more
counterparts may be removed fi:om 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 the sections of this
Agreement are inserted for convenience only and shall not control or affect the meamg
or 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.
8.6 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.
8.7 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 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.
8.8 Future Effect.
8.8.1 Time Essence and Successors. Time is of the essence of this
Agreement. All of the provisions hereof shall inure to the benefit of and be binding upon
the successors, assigns and legal representative of the parties hereto, except as provided
in Section 9.8.2 below. Notwithstanding the foregoing, to the extent permitted by law,
the Developer's rights hereunder may only be assigned by a written instrument, agreed to
by all of the parties to the Agreement hereto and recorded in the Official Records of Pima
County, Arizona, expressly assigning such rights, and no obligation of the Developer
hereunder 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 Developer may create one or more
entities or subsidiaries wholly owned or controlled by the Developer or for
purposes of carrying out the development of the Property as contemplated in this
Agreement, and the Town's consent to the Developer's assigrnuent of its rights hereunder
to such entities or subsidiaries shall not be withheld. In the event of a complete
assignment by Developer of all rights and obligations of Developer hereunder,
Developer's liability hereunder shall terminate effective upon the assumption by
Developer's 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 nmning 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 fi.om 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 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.
8.10 Other InstrUments. Each party hereto 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 gf anY obligation or responsibility imposed upon it by law.
8.12 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof. All prior and
contemporaneous agreements, representation and understanding of the parties, oral or
written, are hereby superseded and merged herein.
8.13 Amendment. No change or addition is to be made to this Agreement
except by a written amendment executed by the 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.
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.
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 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 individual(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.
8.16 SeverabilitY. If any provisions 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
ct~on rohibits or excuses the Town from undertaking any contractu_al ~ .rr~,'tm.e, nt
jurisd~ P .......... ent shall remain in full force and ettect, t~ut me
to perform any act Iaereunaer, rms
provision requiring such action shall be deemed to permit the Town to take such action at
its discretion. If, however, the Town fails to take the action specified hereunder, the
Developer shall be entitled to terminate this Agreement.
8.17 Governing Law/Arbitration. This Agreement is entered into in Arizona
and shill 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. 38-511. 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. 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 roles 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 thereof.
8.18 Recordatio~n. No later than ten (10) days after this Agreement has been
execute~l by the Town and the Developer, the Town shall record the Development
Agreement in its entirety in the Official Records of Pima County, Arizona.
_8.19 No Developer Representation_s. 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.
arty is required pursuant to this Agreement to give its
Ap royal If anY P__ . ......... ,~ ,-,,,, nt or r~ermission shall
8_.20 approP:val, consent or pernnssmn, SUCh app~,v,~,, .... se ,
prior written
not be unreasonably withheld or delayed.
If an arty hereto shall be unable to observe or perform
ce Ma'eure. Y P · ,, ' e to observe
8.21 For .1 .-- ...... r,,*',,,-ce mmeure, then the failur
any covenant or condition laerem oy reason m ,,,- ~ as
or perform such covenant or condition shall not constitute a default hereunder so long
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 mount 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, 1 ock-outs, o r other disturbances o f employer/employee r elations; acts o f
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; lighming;
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.
TOWN:
TOWN OF MARANA, a municipal
corporation
By:
OWNER:
SAGUARO RANCH, L.L.C., an Arizona
limited liability company
By:
Title:
ATTEST:
Title:
By:
Jocelyn Bronson
Town Clerk
APPROVED AS TO FORM:
By:
Daniel J. Hochuli, Esq.
Town Attorney
State of Arizona )
County of Pima )
The foregoing instnnnent was subscribed, sworn to and acknowledged before me
2003 by as
this day of '
of the Town of Marana, Arizona.
Notary Public
My commission expires:
State of Arizona )
County of Pima )
The foregoing instrument was subscribed, sworn to and acknowledged before me
2003 by as
this _ day of -'
of SAGUARO RANCH, L.L.C., an Arizona limited liability
company.
Notary Public
My commission expires: