HomeMy WebLinkAboutResolution 2004-134 development agreement relating to the rancho marana specific plan areaMARANA RESOLUTION NO. 2004-134
RELATING TO LAND DEVELOPMENT; APPROVING AND AUTHORIZING THE
MAYOR TO EXECUTE A DEVELOPMENT AGREEMENT WITH MONTEREY HOMES
CONSTRUCTION, INC., AND STEWART TITLE AND TRUST, TRUST 3240, RELATING
TO A 154-ACRE DEVELOPMENT LOCATED WITHIN THE RANCHO MARANA
SPECIFIC PLAN AREA; AND DECLARING AN EMERGENCY.
WHEREAS, the Town of Marana is authorized to enter into 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
development agreement with Monterey Homes Construction, Inc., and Stewart Title and Trust,
Trust 3240, concerning the 154-acre Monterey Homes development project in the Rancho
Marana Specific Plan area (which agreement is referred to in this resolution as the "Monterey
Homes 154 Development Agreement") 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
Marana, Arizona, approving and authorizing the Mayor to execute the Monterey Homes 154
Development 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.
IT IS FURTHER RESOLVED that it is necessary for the preservation of the peace,
health, and safety of the Town of Marana that this resolution become immediately effective;
therefore, an emergency is hereby declared to exist and this resolution shall be effective
immediately upon its passage and adoption.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona,
this 17th day of August, 2004.
PRO?D
{00000154.DOC/} FJC/cds 8/11/04
F. ANN RODRIG~, RECORDER
RECORDED BY: 1_ J
DEPUTY RECORDER
1861 PEl
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
11555 W CIVIC CENTER DR
MARANA AZ 85653
~KET: 12634
1 E: 1496
NO. OF PAGES: 30
SEQUENCE: 20051750556
09/08/2005
AG 13:51
MAIL
AMOUNT PAID $ 20.50
TOWN OF MARANA
DEVELOPMENT AGREEMENT BETWEEN
TOWN OF MARANA4t ARIZONA4t
MONTEREY HOMES CONSTRUCTION4t
INC. AND STEWART TITLE AND TRUST4t
TRUST 3240
The development agreement was originally recorded at Docket
12370, Page 2849 on August 20, 2004, without Exhibits A, B
and C. It is being re-recorded to include Exhibits A, Band C.
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F. ANN RODRIGU~ RECORDER
RECORDED BY: D ~
DE?~ ,[ RECORDER
7864 PEl
SMARA
TOWN OF MARANA
ATTN: TOWN CLER
13251 N LON S
MARANA AZ
rli:111l\. J. vi:1::SMUY, C::Sy..
Town Attorney
Town of Maran a
13251 N. Lon Adams Road
Marana, Arizona 85653
DO~ET: 12370
-
Pl 2849
NO.".,j PAGES: 26
SEQUENCE: 20041620637
08t20j2004
AG / /' 16 : 55
,,_f'~
MAIL
AMOUNT PAID $ 18.50
DEVELOPMENT AGREEMENT
BETWEEN
TOWN OF MARANA, ARIZONA,
MONTEREY HOMES CONSTRUCTION, INC.
AND
STEWART TITLE AND TRUST, TRUST 3240
8/17/2004
137139,13
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TABLE OF CONTENTS
Page
EXHIBIT LIS T ........................................................................................................ iii
RE C IT AL S ............................................................................................................... 1
A G RE EMENT ......................................................................................................... 2
1. Development Plans ............................... ................................... ....... .............. 2
1.1 Development in Accordance with the Development Parameters ...... 2
1.2 Plat Approvals.................................................................................... 3
1.3 Plat Conditions................................................................................... 3
1.4 Development Standards.......................... ................................. .......... 3
1.4.1 Blocks 1,2 and 4, Blocks 6 and 7.......................................... 3
1.4.1.1 Minimum lot size ....................................................... 3
1.4 .1.2 Distances between homes.......................................... 3
1.4.2 Block 3 and Block 5............................................................... 3
1.4.2.1 Minimum lot size....................... .................. .............. 3
1.4.2.2 Distances between homes .......................................... 3
2.
2.1
2.2
Infrastru cture 1m provemen ts ............................. ............. ....... ............. ....... 4
4
4
2.3
2.4
Regional Public Infrastructure...........................................................
Water Utilities....................................................................................
2.2.1 Non-Potable Water
2.2.2 Transfer of Grandfathered Water Rights ............................... 4
Transportation Improvements............................................................ 5
2.3.1 Tangerine Farms Road..................... .................. .................... 5
2.3.1.1 Construction Obligation...... ......... ......... ......... ............ 5
2.3.1.2 Phasing....................................................................... 5
2.3.2 Clark Farms Boulevard................... .................. ..................... 5
2.3.2.1 Construction Obligation................................. ............ 5
2.3.2.2 Phasing....................................................................... 5
2.3.3 Moore Road........................................................................... 6
2.3.3.1 CMID Canal Relocation ............................................ 6
2.3.4 Barnett Road Channel...... ........... .............. .................. ........... 6
2.3.5 Improvement Obligations........... ........................................... 6
2.3.5.1 Proportionate Share.............................. ......... ............. 6
2.3.5.2 Contributions............................................................. 6
2.3.6 Dedication; Acceptance ................................. ......... ............... 7
Recreation Improvements.................................................................. 7
2.4.1 On-Site Recreation Improvements......................................... 7
2.4.2 Off-Site Recreation Improvements........................................ 8
2.4.2.1 Barnett Linear Park........... ......................................... 8
2.4.2.2 Dedication.................................................................. 8
2.4.2.3 Contributions............................................................. 8
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137139.13
__ABLE OF CONTENTS (Continuea)
Page
2.4.3 Future Improvement Obligations........................................... 9
2.5 Retention/Detention Requirements.................................................... 9
2.6 Santa Cruz River Levee Assessment ................................................. 9
2.7 Fire Protection.................................................................................... 9
3. Cooperation and Alternative Dispute Resolution ..................................... 9
3.1 Appointment of Representatives................. .................... ................... 9
3.2 Timing................................................................................................ 10
3.3 Default; Remedies.............................................................................. 10
3.4 Mediation........................................................................................... 10
3.5 Arbitration.......................................................................................... 10
4. Protected Development Rights ................................................................... 11
4.1 Purpose............................................................................................... 11
4.2 Future Impact Fees......... .................................... ............ .................... 11
5. Notices and Filings ....................................................................................... 11
5.1 Manner of Serving ...... ........... ................... ................. ........................ 11
6. General Terms & Conditions...................................................................... 12
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6.14
6.15
6.16
6.17
6.18
6.19
6.20
6.21
6.22
6.23
Term................................................................................................... 12
Waiver................................................................................................ 12
Attorneys ' Fees.................................................................................. 13
Counterparts....................................................................................... 13
Headings and Recitals........................................................................ 13
Exhibits.............................................................................................. 13
Further Acts....................................................................................... 13
Future Effect...................................................................................... 13
6.8.1 Successors.............................................................................. 13
Termination Upon Sale to Public.. ................... ................ .................. 14
No Partnership and Third Parties....................................................... 14
Other Instruments.............................................................................. 14
Imposition of Duty By Law............................................................... 14
Entire Agreement............................................................................... 14
Amendment........................................................................................ 14
Names and Plans................................................................................ 15
Good Standing; Authority.................................................................. 15
Severability........................................................................................ 15
Governing Law/Arbitration ............................................................... 15
Recordation........................................................................................ 15
No Developer Representations........ ....... ...... ......... ....... ......... ............ 16
Approval............................................................................................ 16
Force Majeure.................................................................................... 16
Time of the Essence........................................................................... 16
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137139.13
EXHIBIT LIST
Exhibit # Description of Exhibit
Prepared By
A Legal description/depiction of the property
Developer
B Conceptual land use plan for the property
Developer
C Barnett Linear Park cross-section
Developer
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (hereinafter "Agreement") is
made by and between the TOWN OF MARANA, an Arizona municipal corporation
(hereinafter "Town"), STEWART TITLE AND TRUST OF TUCSON, an Arizona
corporation, as Trustee under Trust No. 3240 (hereinafter the "Owner"), and
MONTEREY HOMES CONSTRUCTION, INC., an Arizona corporation (hereinafter
"Developer"). Town, the Owner and Developer are referred to herein collectively as
the "Parties."
RECITALS:
A. Owner owns approximately 154 acres of real property within the
corporate limits of the Town, as legally described and depicted on Exhibit "A"
attached hereto (the "Property").
B. Developer is the future developer of the Property. Developer intends
to construct a single-family residential subdivision, approximately six acres of
commercial uses, and remaining park/recreation/open space on the Property. A
conceptual land use plan for the Property is attached hereto as Exhibit "B" (the
"Concept Plan").
C. The Property is located within the Rancho Marana Specific Plan area,
as approved and adopted by the Town pursuant to Marana Ordinance No. 90-04, on
February 6, 1990 (the "Specific Plan"). The Specific Plan does not require
amendment in order for the Property to be developed as proposed by Developer in the
Concept Plan.
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D. As depicted in the Concept Plan attached hereto as Exhibit "B", the
Property is divided generally into seven blocks of which Developer intends to
develop Blocks 1,2,3 and 4 for medium density residential uses, and Blocks 5, 6 and
7 for future commercial uses which may be converted to residential uses through the
appropriate Town procedures. All of the proposed uses on the Property are permitted
under the zoning established in the Specific Plan.
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E. Developer has prepared for Town review and approval a block plat
for the Property (the "Block Plat") which includes certain conditions agreed to as
between Developer and Town staff. Subsequently, Developer shall also submit for
Town approval a preliminary plat (the "Preliminary Plat"), a final plat (the "Final
Plat") and infrastructure improvement plans (the "Improvement Plans") for the
development Blocks as generally depicted in the Concept Plan attached hereto as
Exhibit "B".
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F. The future development of the Property shall be subject to, among
other things, (i) the Concept Plan, attached hereto as Exhibit "B", (ii) the Specific
Plan, (iii) the Marana General Plan, (iv) the Northwest Marana Area Plan (the
"NWMAP") (as applicable), (v) the Marana Development Code (including the
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written rules, regulations, procedures and other policies relating to development of
land, whether adopted by the Mayor and Councilor by Town staff) (the "MDC"),
(vi) conditions of the Block Plat (if any), (vii) conditions of the Preliminary and Final
Plats as detailed in the Plat Resolution (if any) , and (viii) the Improvement Plans
(collectively, the "Development Parameters"), collectively establishing, among
other things, the type of land uses, location, density and intensity of such land uses,
and community character of the Property, and providing for, among other things, the
development of a variety of housing, recreation/open space and commercial
opportunities.
G. The Parties desire that the Property shall be developed in accordance
with the Development Parameters, as amplified and supplemented by this Agreement
as such Agreement may be amended from time to time. The Parties acknowledge
that this Agreement is intended to be consistent with the foregoing, and operates to
the benefit of the Town, the Owner, Developer and the public.
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. S 9-500.05, in order to facilitate the development of the Property by
providing for, among other things, conditions, terms, restrictions and requirements for
the construction and installation of public infrastructure as more particularly
described herein, the phasing over time of construction or development on the
Property, and other matters related to the development of the Property.
I. Developer is working with the Cortaro-Marana Irrigation District
("CMID") to enter into a formal agreement concerning the maintenance of the
necessary irrigation system, well sites and other structures.
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J. The Parties acknowledge that the development of the Property
pursuant to this Agreement will result in planning and economic benefits to the Town
and its residents by, among other things, requiring development of the Property
consistent with the Development Parameters.
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Now, THEREFORE, in consideration of the foregoing premises and the
mutual promises and agreements set forth herein, the Parties hereto state, confirm and
agree as follows:
AGREEMENT:
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1. Development Plans.
1.1. Development in Accordance with the Development Parameters.
The Property shall be developed in accordance with the Development Parameters (as
defined herein) which sets 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 Developer with the applicable development
review and approval procedures as set forth in the Development Parameters,
including the phasing as proposed in the Concept Plan attached hereto as
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137139,13
Exhibit "B", 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 Development Parameters.
1.2. Plat Approvals. Developer has submitted to the Town a Block
Plat which includes the subdivision of Lots 1 through 167 and Blocks 1 through 7.
Developer will subsequently submit a Preliminary Plat and the Final Plat for each
development Block as depicted generally in the Concept Plan attached hereto as
Exhibit "B", in substantial conformance with the Block Plat. The Town agrees to
review all the plat submissions expeditiously and in good faith, and to work diligently
with Developer toward all plat approvals.
1.3. Plat Conditions. Developer agrees to fulfill the conditions (if
any) outlined in the Preliminary Plat or Final Plat and otherwise provided in the
Development Parameters and as may be clarified by this Agreement for the Property.
1.4. Development Standards. Developer shall be permitted to develop
residential lots and single family detached homes on the Property in compliance with
Section 08.06 of the Marana Land Development Code and accordance with the
following specific development standards:
1.4.1. Blocks 1. 2 and 4 and Blocks 6 and 7 (if Blocks 6 and 7 are
developed for residential lots and single family detached homes) (as depicted on the
Concept Plan attached hereto as Exhibit "B").
1.4.1.1. Minimum lot size. The minimum lot size for a single
family detached home shall be 6,000 square feet.
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1.4.1.2. Distances between homes. There shall be a minimum
distance of (i) 15 feet between single family detached homes of up to 25 feet in
height; and (ii) 20 feet between single family detached homes over 25 feet in height.
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1.4.2. Block 3 and Block 5 (if Block 5 is developed for residential
lots and single family detached homes) (as depicted on the Concept Plan attached
hereto as Exhibit "B").
1.4.2.1. Minimum lot size. The minimum lot size for a single
family detached home shall be 4,500 square feet.
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1.4.2.2. Distances between homes. There shall be a minimum
distance of 10 feet between single family detached homes.
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2. Infrastructure Improvements.
2.1. Regional Public Infrastructure. The public infrastructure
described in Section 2 of this Agreement will be provided by Developer in order to
serve the planned development of the Property, but will also facilitate and support the
ultimate development of the larger land area that includes the Property (the
"Regional Public Infrastructure"). The Town acknowledges that portions of the
Regional Public Infrastructure will be provided as part of the early phases of
development of the Property, prior to the time when such public infrastructure
facilities and services would otherwise be required to serve completed phases of the
development within the Property and, therefore, prior to the time Developer might
otherwise be required to provide or contribute to the cost of same and prior to the
time the expense of such public infrastructure facilities and services otherwise would
be justified by the phasing of development of the Property. Developer is willing to
provide the Regional Public Infrastructure earlier than otherwise required for its
private development of the Property, and to have such Regional Public Infrastructure
utilized to facilitate and support development of the larger land area that includes the
Property only if Developer can complete development of the Property as provided for
in this Agreement. The Town acknowledges this commitment by Developer and will
reasonably cooperate to allow this development to proceed pursuant to this
Agreement.
2.2. Water Utilities. The Town's Marana Municipal Water System
will provide water service to the Property. Developer and the Town are currently
negotiating a "Water Service Agreement," which sets forth the various agreements
of the Parties relating to, among other things, the development, construction,
dedication, ownership, and design of the water system which shall serve the Property,
and the maximum per lot fee to be charged for water connections. This Water
Service Agreement shall be entered into prior to recordation of the Final Plat for the
Property. The Town will act on the Water Service Agreement as soon as reasonably
possible.
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2.2.1. Non-Potable Water. Developer shall construct and install a
non-potable water delivery system to individua110ts on the Property. The Town shall
not require the installation of individual non-potable water meters for each lot.
Instead, the Town shall only require Developer to install a single master non-potable
water meter for each Block of lots, homes or residences. Additionally, Developer
may be required to install additional non-potable water meters for those areas
designated as "common areas" on the Preliminary Plat.
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2.2.2. Transfer of Grandfathered Water Rights. The Owner shall
transfer to the Town, as prescribed by the Arizona Department of Water Resources,
the Irrigation Grandfathered Rights ("IGR") Type I or Type II water rights, if any, on
lands deeded to the Town pursuant to the Certificate of Grandfathered Water Rights.
On lands not deeded to the Town, extinguishment credits, if any, will be transferred
to the Town on the appropriate Department of Water Resources form. In exchange,
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the Town shall provide designation of assured water supply and water service to the
Property. The Parties shall determine if the transfer of such IGR Type I or Type II
water rights is required and further identify and describe the nature of the rights to be
transferred as part of the preparation of the Water Service Agreement.
2.3. Transportation Improvements.
2.3.1. Tangerine Farms Road. Developer shall dedicate a 250-foot
right-of-way to the Town for Tangerine Farms Road at the time of approval of the
Final Plat.
2.3.1.1. Construction Obligation. Developer shall construct a
new segment of Tangerine Farms Road running from Moore Road to Barnett Road,
consistent with the cross-section of Tangerine Farms Road included as part of the
Concept Plan attached as Exhibit "B". Construction shall include the shoulder, 100-
foot buffer with landscaping, a trail and drainage facilities along the east side of
Tangerine Farms Road, the shoulder and landscape buffer along the west side of
Tangerine Farms Road, and the landscaped median strip (collectively the "Tangerine
Buffer Improvements").
2.3.1.2. Phasing. Developer shall construct Tangerine Farms
Road, including the construction of the Tangerine Buffer Improvements, in a
minimum of two phases, or as required and necessary to serve adjacent Blocks of the
Property to be developed. The first phase of construction shall include that portion of
Tangerine Farms Road from Moore Road north to Clark Farms Boulevard that will be
adjacent to and include Blocks 1 and 2 of the development and shall be completed
prior to the issuance of the 100th building permit. The second phase of construction
shall include the balance of Tangerine Farms Road and shall be completed prior to
the release of the assurances posted to assure completion of the improvements set
forth on the final plat for each development Block as depicted generally on the
Concept Plan.
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2.3.2. Clark Farms Boulevard. Developer shall dedicate a 90-foot
right-of-way to the Town for Clark Farms Boulevard at the time of approval of the
Final Plat.
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2.3.2.1. Construction Obligation. Developer shall construct
Clark Farms Boulevard from Sandario Road to the western boundary of the Property,
consistent with the cross-section of Clark Farms Boulevard included as part of the
Concept Plan attached as Exhibit "B". Construction shall include the shoulder and
landscape buffer along both the north and south sides of the roadway (collectively the
"Clark Farms Buffer Improvements").
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2.3.2.2. Phasing. Developer shall construct Clark Farms
Boulevard, including the construction of the Clark Farms Buffer Improvements, in a
minimum of two phases, or as required and necessary to serve adjacent Blocks of the
Property to be developed. The first phase of construction shall include that portion of
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137139.13
Clark Farms Boulevard from Sandario Road west to Tangerine Farms Road that is
adjacent to and includes Blocks I and 3 of the development and shall be completed
prior to the issuance of the 100th building permit. The second phase of construction
will include the balance of Clark Farms Boulevard and shall be completed prior to the
issuance of the 400th building permit.
2.3.3. Moore Road. Developer will dedicate to the Town a
maximum additional 95-foot right-of-way for Moore Road along the southern
boundary of the Property at the time of Final Plat approval and shall construct such
turn bays and tapers as may be warranted by Developer's traffic impact study for the
Property contemporaneously with each development Block contiguous to Moore
Road. Such turn bays and tapers will be completed prior to the release of the
assurances posted to assure completion of the improvements set forth on the final plat
for each development Block as depicted generally on the Concept Plan. The Town
shall not require Developer to install or construct any other improvements in
connection with Moore Road or with the additional 95-foot right-of-way dedication
for Moore Road except as provided in this Section 2.3.3.
2.3.3.1. CMID Canal Relocation. If required by separate
agreement with the CMID, the CMID canal currently located at the southern
boundary of the Property adjacent to Moore Road will be relocated by Developer into
a pipeline that will be placed within the additional 95-foot right-of-way along Moore
Road along the southern boundary of the Property in a location that is acceptable to
the Town and the CMID.
2.3.4. Barnett Road Channel. Developer shall excavate the
Barnett Road Channel where it runs along the northern boundary of the Property,
including a grade crossing at Tangerine Farms Road, as depicted on Exhibit "B",
concurrently with the development of any Block of the Property adjacent to the
Barnett Road Channel. Such improvements shall be completed prior to the release of
the assurances posted to assure completion of the improvements set forth on the final
plat for each development Block as depicted generally on the Concept Plan.
Developer shall be permitted to use the material excavated from the Barnett Road
Channel. The Town shall not require Developer to construct a bridge, a crossing
structure or drainage structures in connection with the Barnett Road Channel.
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2.3.5. Improvement Obligations.
2.3.5.1. Proportionate Share. Except as otherwise provided in
this Section 2.3.5, completion of the improvements described in Section 2.3 is
deemed to satisfy the Specific Plan requirement that Developer contribute its
proportionate financial share to regional transportation improvements.
2.3.5.2. Contributions. Developer has agreed to construct
100% of Tangerine Farms Road as provided in Section 2.3.1 which shall become part
of the Town's Regional Public Infrastructure as defined in this Agreement and shall
provide a beneficial use to the Town beyond that provided to the future residents of
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137139.13
the Property. The Parties acknowledge that Developer's construction of
approximately 50% of Tangerine Farms Road is reasonably related to and intended to
offset the burden that the development of the Property imposes on the Town. The
Parties further acknowledge that Developer's construction of the remaining
approximately 50% of Tangerine Farms Road exceeds the improvements reasonably
related to the burden that the development of the Property imposes on the Town.
Accordingly, notwithstanding any Town requirements to the contrary, the value of
Developer's construction and dedication of the remaining approximately 50% of
Tangerine Farms Road, as provided in Section 2.3.1, shall be deemed to be a
contribution made by Developer toward the capital costs of necessary public services
as such may be identified by the Town in connection with transportation impact fees
or assessments that are currently in effect or that may be adopted by the Town to be
imposed or assessed upon the Property, including without limitation a uniform
regional transportation impact fee, and shall be credited to Developer pursuant to
A.R.S. S 9-463.05. Such impact fees or assessments shall be assessed at the time of
issuance of building permits.
2.3.6. Dedication: Acceptance. Upon construction and dedication
by Developer of the improvements as provided in this Section 2.3, the Town shall
accept dedication of such improvements and assume all maintenance, repair and
replacement obligations for such improvements, except for any areas that may be
used for drainage from the Property.
2.4. Recreation Improvements. It is Developer's intention, which the
Town acknowledges and relies upon, to incorporate significant open space,
recreational and drainage improvements, including (i) neighborhood pocket parks
located and constructed at Developer's discretion on the Property, (ii) the Tangerine
Buffer Improvements, and (iii) landscaping in, on and around the Barnett Road
Channel, and a regional trail located within the Barnett Road Channel as described
herein (the "Barnett Linear Park") that shall be incorporated into the Town's
regional park system. The neighborhood pocket parks, the Tangerine Buffer
Improvements, the Barnett Road Channel landscaping and the Barnett Road Linear
Park shall be referred to collectively as the "Recreation Improvements." The
Recreation Improvements shall be reviewed and approved by the Town Parks and
Recreation Director and Development Services Administrator in consultation with
Developer.
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2.4.1. On-Site Recreation Improvements. Developer shall
construct a series of neighborhood pocket parks to provide 185 square feet of on-site
park improvements for every residence which neighborhood pocket parks shall be
completed prior to the release of the assurances posted to assure completion of the
improvements set forth on the final plat for each development Block as depicted
generally on the Concept Plan. At Developer's option, subject to Town approval,
certain neighborhood pocket parks may be located in the Barnett Road Channel or
within other excess right-of-way for Tangerine Farms Road, Clark Farms Boulevard
or Moore Road and immediately adjacent to the development Block to which it shall
provide recreational uses. The neighborhood pocket parks shall be dedicated to the
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137139.13
Town only if they are located in the Barnett Road Channel or within other excess
right-of-way for Tangerine Farms Road, Clark Farms Boulevard or Moore Road, in
which case Developer agrees to dedicate such neighborhood pocket parks but agrees
to retain all maintenance, repair and replacement [and insurance?] obligations for
such neighborhood pocket parks.
2.4.2. Off-Site Recreation Improvements. The Tangerine Buffer
Improvements (as described herein) and the Barnett Linear Park and Barnett Road
Channel landscaping (collectively the "Off-Site Recreation Improvements")
comprise approximately 12.7 acres. Developer's construction and dedication of the
Off-Site Recreation Improvements and the real property on which they are located is
deemed to satisfy certain Town dedication and contribution requirements as further
discussed below.
2.4.2.1. Barnett Linear Park. The Barnett Linear Park consists
of approximately 6.9 acres and will include landscaping and trail improvements, a
cross-section depiction of which is attached as Exhibit "C". These improvements
shall be constructed concurrently with the development of any Block of the Property
adjacent to the Barnett Linear Park and shall be completed prior to the release of the
assurances posted to assure completion of the improvements set forth on the final plat
for each development Block as depicted generally on the Concept Plan. Upon
construction and dedication by Developer of the Barnett Linear Park and its
improvements as provided in this Section 2.4.2.1, the Town shall accept dedication of
the Barnett Linear Park and its improvements and assume all maintenance, repair and
replacement obligations, except for any areas that may be used for drainage from the
Property.
2.4.2.2. Dedication. The Town has established the following
formula to determine the amount of land to be developed and dedicated for the
purpose of off-site park or recreation improvements: six (6) acres of developable
park land per 1000 residents at 2.67 people per residence. Because Developer intends
to develop approximately 600 residences on the Property, Developer is required to
develop and dedicate 9.6 acres of developable park land. Developer's agreement to
develop and dedicate a total of 12.7 acres of developable park land shall be deemed to
satisfy the Town's dedication requirement as described in this Section 2.4.3.2. The
Town further acknowledges that Developer is providing an excess of 3.1 acres of
developable park land.
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2.4.2.3. Contributions. The Town has also established a
requirement that a developer shall make a contribution or shall provide park and trail
system improvements with a total value equivalent to $1,000 for every residence
developed. The Off-Site Recreation Improvements shall have a value of
approximately $532,000.00 Additionally, the additional 3.1 acres of developable
park land that Developer intends to develop and dedicate to the Town has a value of
approximately $172,000.00. Accordingly, Developer shall be deemed to satisfy the
Town's contribution requirement as described in this Section 2.4.3.
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137139.13
2.4.3. Future Improvement Obligations. The construction (and
dedication where applicable) of the Recreation Improvements located both on-site
and off-site pursuant to this Section 2.4 is reasonably related to and intended to offset
the burden that the development of the Property imposes on the Town. To the extent
that the value of the Recreation Improvements, including dedicated real property and
the physical improvements constructed thereon, exceeds the Town's current on-site
and off-site recreation, open space or park improvement requirements, contributions,
impact fees or assessments, the Town shall grant to Developer a credit against any
and all future on-site and off-site recreation, open space or park improvement
requirements, contributions impact fees or assessments that may be adopted by the
Town to be imposed or assessed upon the Property and all the subdivisions within the
Property consistent with A.R.S. S 9-463.05.
2.5. Retention/Detention Requirements. The construction and
dedication of the Off-Site Recreation Improvements as described in this Agreement
shall satisfy all retention requirements for the residential portion of the Property,
except for approximately 28.5 acres of additional retention area required as shown on
the Concept Plan. Upon the Town's completion of the Barnett Linear Park channel
outside the Property and providing positive drainage into the Santa Cruz River,
retention requirements will not be imposed on the Property.
2.6. Santa Cruz River Levee Assessment. Prior to the issuance of a
building permit and pursuant to Marana Ordinance No. 99-02, Developer shall pay to
the Town an assessment of $500 an acre for the 154 acres of the Property totaling
approximately $77,000, as Developer's fair share contribution to the construction
costs associated with the lower Santa Cruz River Levee.
2.7. Fire Protection. Prior to issuance of the certificate of occupancy
for any dwelling unit, Developer shall complete the process of having the Property
annexed into a fire district if the Property is not already so annexed. The fire district
must be capable of providing fire prevention, fire suppression and other emergency
services, and must be approved by the Town, which approval shall not be
unreasonably withheld.
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3. Cooperation and Alternative Dispute Resolution.
3.1. Appointment of Representatives. To further the commitment of
the Parties to cooperate in the progress of the Development, the Town, the Owner and
the Developer each shall designate and appoint a representative to act as a liaison
between the Town and its various departments and the Owner and/or the Developer.
The initial representative for the Town (the "Town Representative") shall be the
Planning Director, the initial representative of the Owner shall be Greg Wexler and
the initial representative for the Developer shall be Lisa S. Hoskin or a substitute
representative to be selected by the Developer. The representatives shall be available
at all reasonable times to discuss and review the performance of the Parties to this
Agreement and the development of the Property.
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3.2. Timing. The Town acknowledges the necessity for prompt
review by the Town of all plans and other materials (the "Submitted Materials")
submitted by Developer and/or the Owner 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.
3.3. Default; Remedies. If any party hereto defaults (the "Defaulting
Party") with respect to any of such party's obligations hereunder, then any other
party hereto (the "Non-Defaulting Party") shall be entitled to give written notice in
the manner prescribed in Section 6.1 to the Defaulting Party, which notice shall state
the nature of the default claimed and make demand that such default be corrected.
The Defaulting Party shall then have (i) twenty (20) days from the date of such notice
within which to correct such default if it can reasonably be corrected by the payment
of money, or (ii) sixty (60) days from the date of such notice to cure such default if
action other than the payment of money is reasonably required, or if any such non-
monetary default cannot reasonably be cured within sixty (60) days, then such longer
period as may be reasonably required, provided and so long as such cure is promptly
commenced within such period and thereafter diligently prosecuted to completion. If
any such default is not cured within the applicable time period(s) set forth above in
this Section 3.3, then the Non-Defaulting Party shall be entitled to begin the
mediation and arbitration proceedings set forth in Sections 3.4 and 3.5. 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 3.3 shall not limit any other rights,
remedies, or causes of action that either party may have at law or in equity.
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3.4. 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 the Parties. If the Parties cannot agree upon the
selection of a mediator within seven days, then within three days thereafter the Parties
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 Parties. The results of the mediation shall be nonbinding on the Parties, and any
Party shall be free to initiate arbitration after the moratorium.
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3.5. Arbitration. After mediation pursuant to Section 3.4, any
dispute, controversy, claim or cause of action arising out of or relating to this
10
137139.13
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.
[DOES THIS MEAN NO LAWSUIT IS PERMITTED? commence an action at law
or in equity in the Pima County Superior Court]
4. Protected Development Rights.
4.1. Purpose. Developer has made a substantial commitment of
resources for public and private improvements such as but not limited to the water
system, Recreation Improvements and transportation improvements. 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 Development
Parameters 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, Developer, the Owner and the Town agree that the zoning designations and land
use provisions established by the Rancho Marana Specific Plan and the Development
Parameters, including but not limited to the permitted uses, density and intensity of
uses, and maximum height and size of buildings, shall remain in effect and shall not
be changed without the agreement of the Owner and Developer for eight (8) years
following the Effective Date of this Agreement.
4.2. Future Impact Fees. In consideration for the transportation
improvements described in Section 2.3 and the recreation improvements described in
Section 2.4 and funded andlor constructed by Developer pursuant to this Agreement,
in the event that the Town adopts an impact fee for the same infrastructure for which
Developer has contributed land andlor made improvements andlor 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. S 9-463.05.
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5. Notices and Filings.
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5.1. Manner of Serving. All notices, filings, consents, approvals and
other communications provided for herein or given in connection herewith shall be
validly given, filed, made, transmitted or served if in writing and delivered personally
or sent by registered or certified United States mail, postage prepaid, 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):
The Town:
Town of Maran a
Planning Director
13251 N. Lon Adams Road
Marana, Arizona 85653
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With a copy to:
Town of Marana
Town Attorney
13251 N. Lon Adams Road
Marana, Arizona 85653
Owner:
Stewart Title and Trust of Tucson
as Trustee under Trust No. 3240
Attention:
3939 East Broadway
Tucson, Arizona 85711
Developer:
Monterey Homes Construction, Inc.
Attention: Lisa S. Hoskin
4742 North Oracle Road, Suite 111
Tucson, Arizona 85705
With a copy to:
Mary Beth Savel
Lewis and Roca, LLP
One South Church Ave., Suite 700
Tucson, Arizona 85701-1611
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6. General Terms & Conditions.
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6.1. 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 from the date of this 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.
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6.2. Waiver. No delay in exercising any right or remedy shall
constitute a waiver thereof, and no waiver by the Town, the Owner or 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.
12
137139.13
6.3. Attorneys' Fees. In the event any party hereto finds it necessary
to bring an action at law or other proceeding against any other party to enforce any of
the terms, covenants or conditions hereof, or by reason of any breach of default
hereunder, the party prevailing in any such action or other proceeding shall be paid
all reasonable costs and reasonable attorneys' fees by the other party, and in the event
any judgment is secured by said prevailing party, all such costs and attorneys' fees
shall be included therein, such fees to be set by the court and not by jury.
6.4. 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.
6.5. Headings and Recitals. The descriptive headings of the sections
of this Agreement are inserted for convenience only and shall not control or affect the
meaning 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.
6.6. 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.
6.7. Further Acts. Each of the Parties hereto shall execute and deliver
all such documents and perform all such acts as reasonably necessary, from time to
time, to carry out the matters contemplated by this Agreement. Without limiting the
generality of the foregoing, the Town shall cooperate in good faith and process
promptly any requests and applications for plat or permit approvals or revisions, and
other necessary approvals relating to the development of the Property by the Owner,
Developer and their successors.
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6.8. Future Effect.
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6.8.1. Successors. All of the provisions hereof shall inure to the
benefit of and be binding upon the successors, assigns and legal representatives of the
Parties hereto, except as provided in Section 6.9 below. To the extent permitted by
law, Developer's rights hereunder may be freely assigned by a written instrument
recorded in the Official Records of Pima County, Arizona, expressly assigning such
rights. Notwithstanding the foregoing to the contrary, obligations of Developer
hereunder shall be binding upon anyone owning any right, title or interest in the
Property, provided such obligation has been specifically assumed in writing and such
writing has been recorded in the Official Records of Pima County, Arizona. The
Town understands that Developer may create one or more entities or subsidiaries
wholly owned or controlled by Developer for purposes of carrying out the
development of the Property as contemplated in this Agreement. In the event of a
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137139,13
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.
6.9. Termination Upon Sale to Public. It is the intention of the Parties
that although recorded, this Agreement shall not create conditions or exceptions to
title or covenants running with the land unless specifically noted otherwise in this
Agreement. Nevertheless, in order to alleviate any concern as to the effect of this
Agreement on the status of title to any ofthe Property, this Agreement shall terminate
without the execution or recordation of any further document or instrument as to any
lot which has been finally subdivided and individually (and not in "bulk") leased (for
a period of longer than one year) or sold to the end purchaser or user thereof and
thereupon such lot shall be released from and no longer be subject to or burdened by
the provisions of this Agreement.
6.10. 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 Developer, the Owner 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.
6.11. 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 requested or appropriate to evidence or give
effect to the provisions of this Agreement.
6.12. Imposition of Duty By Law. This Agreement does not relieve
any party hereto of any obligation or responsibility imposed upon it by law.
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6.13. Entire Agreement. This Agreement constitutes the entire
agreement between the Parties hereto pertaining to the subject matter hereof. All
prior and contemporaneous agreements, representations and understanding of the
Parties, oral or written, are hereby superseded and merged herein.
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6.14. Amendment. The Parties shall cooperate and in good faith
pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Development Parameters, and to facilitate the
development of the Property in light of any changes in development requirements,
including an extension of the term of this Agreement as provided in Section 6.1. If
Developer or the Owner determines that it would be beneficial to amend this
Agreement to include adjacent lands owned by Developer or the Owner, the Town
agrees to consider in good faith such amendment. All amendments to this Agreement
shall be in writing and, if approved, must be signed by all appropriate Parties. Within
ten (10) days after any amendment to this Agreement, such amendment shall be
recorded by, and at the expense of, the party requesting the amendment, in the
Official Records of Pima County, Arizona.
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6.15. Names and Plans. Developer shall be the sole owner of all
names, titles, plans, drawings, specifications, ideas, programs, designs and work
products of every nature at any time developed, formulated or prepared by or at the
instance of 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.
6.16. Good Standing; Authority. 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 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.
6.17. Severability. If any provision of this Agreement is declared
void or unenforceable, such provision shall be severed from this Agreement, which
shall otherwise remain in full force and effect. If any applicable law or court of
competent jurisdiction prohibits or excuses the Town from undertaking any
contractual commitment to perform any act hereunder, this Agreement shall remain in
full force and effect, but the provision requiring such action shall be deemed to
permit the Town to take such action at its discretion. If, however, the Town fails to
take the action specified hereunder, Developer and/or the Owner shall be entitled to
terminate this Agreement.
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6.18. Governing Law/Arbitration. This Agreement is entered into in
Arizona and shall be construed and interpreted under the laws of Arizona, and the
Parties agree that any litigation or arbitration shall take place in Pima County,
Arizona. In particular, this Agreement is subject to the provisions of A.R.S. ~ 38-
511. This Agreement has been negotiated by the Town and Developer, and no party
shall be deemed to have drafted this Agreement for purposes of construing any
portion of this Agreement for or against any party. Any dispute, controversy, claim
or cause of action arising out of or relating to this Agreement shall be settled by
submission of the matter by both Parties to binding arbitration in accordance with the
rules of the American Arbitration Association and the Arizona Uniform Arbitration
Act, A.R.S. ~ 12-501, et seq., and judgment upon the award rendered by the
arbitrator(s) may be entered in a court having jurisdiction thereof.
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6.19. Recordation. No later than ten (10) days after this Agreement
has been executed by the Town, the Owner and Developer, the Town shall record the
Agreement in its entirety in the Official Records of Pima County, Arizona.
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137139.13
6.20. No Developer Representations. Except as specifically set forth
herein, nothing contained herein shall be deemed to obligate the Town, the Owner or
Developer to complete any part or all of the development of the Property.
6.21. 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.
6.22. Force Majeure. If any party hereto shall be unable to observe or
perform any covenant or condition herein by reason of "force majeure," then the
failure to observe or perform such covenant or condition shall not constitute a default
hereunder so long as such party shall use its best effort to remedy with all reasonable
dispatch the event or condition causing such inability and such event or condition can
be cured within a reasonable amount of time. "Force majeure," as used here, means
any condition or event not reasonably within the control of such party, including
without limitation, "acts of God"; strikes, lock-outs, or other disturbances of
employer/employee relations; acts of public enemies; orders or restraints of any mind
of the government of the United States or any state thereof or any of their
departments, agencies, or officials, or of any civil or military authority; insurrection;
civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence;
fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of
people; explosions; and partial or entire failure of utilities. Failure to settle strikes,
lock-outs and other disturbances of employer/employee relations or to settle legal or
administrative proceedings by acceding to the demands of the opposing party or
Parties, in either case when such course is in the judgement of the party hereto
unfavorable to such party, shall not constitute failure to use its best efforts to remedy
such a condition.
6.23. Time of the Essence. Time is of the essence in this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement the day and
year written below.
Date: tjJ1/o tf
TOWN OF MARANA
an Arizona municipal corporation
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137139,13
APPROVED AS TO FORM AND AUTHORITY
The foregoing Agreement has been reviewed by the undersigned attorney who has
determined that it is in proper form and within the power and authority granted under
the laws ofthe State of Arizona to the Town of Marana.
STATE OF ARIZONA
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County of Pima
/~The foregoi
LL- day of
document was sworn to and acknowledged before me the
, 2004, by Bobby Sutton, Jr., in his capacity as
, an Arizona munici~ 1 corporation..
OFFICIAL SEAL
e FRANK J. CASSIDY
Notary Public . State of ArizonI
PIMA COUNTY
My Comm. Expires April 13, 2008
My ~mmission Expires:
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137139.13
Date: (}.AU dD
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Marana 154 General Partnership,
an Arizona general partnership
By Stewart Title and Trust of Tucson,
an Arizona corporation, as Trustee under
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Noone Pat Spauldinq
Its Trust Officer
STATE OF ARIZONA
County of Pima
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The foregoing document was sworn to and acknowledged before me the
20th day of AUGUST , 2004, by PAT SPAULDING , of
Stewart Title and Trust of Tucson, an Arizona corporation, in its capacity as Trustee
under Trust No. 32400nly,~H~:ROO~UU!~~~~K.X as Trust Officer.
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Notary Public
My CpmmissionjExpires:
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NOTARY PUBLIC
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My CommiSSion Explf&s April 19, 2006
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137139.13
Date:
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STATE OF ARIZONA
County of V\-mC-
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The foregoing document was sworn to and acknowledged before me the
lLday of August, 2004, by Greg Wexler, General Partner of Marana 154 General
Partnership, an Arizona general partnership on behalf of the corporation.
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Notary Public
My Commission Expires:
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EUSABETT BALDERRAMA
No:ory DubHe - Arizona
p" ,,(1 c;ounty
My Comr !;!SSlon Expires
September 9,2007
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137139.13
DateQ'
STATE OF ARIZONA
County of (JIm tL
Marana 154 General Partnership,
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Name Greg Wexler
Its Beneficiary
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The foregoing document was sworn to and acknowledged before me the
~day of August, 2004, by Greg Wexler. Beneficiary of Maran a 154 General
Partnership, an Arizona general partnership on behalf of the corporation.
My C<]1illII)issio~Expires:
Lf- q -Dc..r
ELlSABETT BALDERRAMA
Notary Public - Arizona
Pima County
My Commission Expires
September 9, 2007
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Notary Public
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Marana 198 Limited Partnership,
an Arizona limited liability partnership
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Date:
By
Name Robert Sarver
Its Beneficiary
STATE OF (!~J2~ +J ril/ q
County of ~tl b i ~ j()
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Ii The f~regoing docume:.J!'s swofl1 to )pd acknowledged before m~ ~e .
~day of AlA, u~{-2004, by t be rL ':01.. ifV~ Y , @-ctle..-vz{ ~.Jttrbu-{'
of Marana 198 Limited Partnership, an Arizona limited liability partnership on behalf
of the corporation.
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137139.13
Date:
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STATE OF ARIZONA
YimfA./
County of
Monterey Homes Construction, Inc.,
an Arizona corporation
By
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The foregoin document was sworn to and acknowledged before me the
J1 th day of ' ~. , 2004, by Jeffrey R. Grobstein,
~fdW-.,/.t!iJ1.Dj{.of M terey Homes Construction, Inc., an Arizona corporation, on
behalf of the corporation.
~ission Expires:
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13713913
No. 230-4036877
EXHIBIT "A"
The Southeast quarter of Section 28, Township 11 South, Range 11 East, Gila and Salt River
Base and Meridian, Pima County, Arizona,
EXCEPT that portion described as follows:
Beginning at a point 37.5 feet North and 37.5 feet West of the Southeast corner of said Section
28, which is the True Point of Beginning;
Thence West and parallel to the South line of said Section, a distance of 100 feet to a point;
Thence North and parallel to the East line of said Section, a distance of 100 feet to a point;
Thence East and parallel to the South line of said Section, a distance of 100 feet to a point;
Thence South and parallel to the East line of said Section 100 feet to a point which is the True
Point of Beginning.
FURTHER EXCEPT that portion described as follows:
EXCEPT the North 290 feet 6 inches of the West 170.00 feet of the Southeast quarter of Section
28, Township 11 South, Range 11 East, Gila and Salt River Base and Meridian, Pima County,
Arizona; EXCEPT the West 20 feet thereof;
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FURTHER EXCEPT those portions lying within Moore Road, as established in Book 2 of Road
Maps at Page 19 and Grier Road 117, now known as Sandario Road, as established in Book 2 of
Road Maps, at Page 173.
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