HomeMy WebLinkAboutResolution 92-001 development agreement with tortolita mountain propertiesRESOLUTION 92-01
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA
APPROVING A DEVELOPMENT AGREEMENT WITH TORTOLITA MOUNTAIN PROPER-
TIES LIMITED PARTNERSHIP
WHEREAS, the Town is empowered, pursuant to A.R.S. Section
9-500.05, to enter into development agreements relating to
property in the municipality; and
WHEREAS, the Town Council has reviewed the Development
Agreement between the Town of Marana and Tortolita Mountain
Properties Limited Partnership (hereinafter referred to as
"Development Agreement"), a copy of which is attached hereto and
made a part hereof; and
WNEREAS;~ it has been determined by the Town Council that it
would be in the best interests of the Town and the continued
development of the Town to enter into the attached Development
Agreement.
NOW, THEREFORE, BE IT RESOLVED, that the Development Agreement
between the Town of Marana and Tortolita Mountain Properties
Limited Partnership attached hereto and made a part hereof, is
hereby approved.
BE IT FURTHER RESOLVED that the Mayor is hereby empowered to
execute the attached Development Agreement on behalf of the Town
of Marana.
WHEREAS, the immediate operation of this Resolution is
necessary for the preservation of the public peace, health and
safety of the Town of Marana, Arizona, an emergency is hereby
declared to exist, and this Resolution shall be in full force and
effect from and after its passage and adoption.
PASSED AND ADOPTED by the Mayor and Council of the Town of
Marana, Arizona this 7th day of January, 1992.
ATTE~,~ f
MAYOR
APPROVED AS TO FORM:
.
Tortolita Mountain Properties
. 4320 North Canlpbell Avenue
Suite 226
Tucson, Arizona 85718
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT (this "Agreement") is
made as of this day of , 1991, by and between the TOWN OF
MARANA, an Arizona municipal corporation (the "Town"), and TORTOLITA MOUNTAIN
PROPERTIES LIMITED PARTNERSHIP, an Arizona limited partnership (the "Developer").
RECITALS
A. The Developer is the owner of that land which consists of approximately 2347
acres and is legally described on Exhibit "A" attached hereto (the "Property"). The Property
is not presently within the town limits of the Town, and is depicted on the map attached hereto
as Exhibit "Bit. It is located generally adjacent to land previously annexed into the Town (the
"Phase I & II Property It) pursuant to two Agreements, the first dated August 2, 1988 between
the Town and the Developer's predecessor in the title and the second dated April 17, 1990
between the Town and the Developer (the "Prior Pre-Annexation Agreements").
B. Pursuant to Arizona Revised Statutes, Section 9-500.05, as amended, the Town
and the Developer enter into this Agreement in order to, among other things, (i) provide for the
annexation of the Property into the town limits of the Town, (ii) facilitate development of public
improvements to and on the Property by providing for the financing, acquisition and/or
construction of water, se~er, road, drainage and other infrastructure, through the creation of a
Communities Facilities District (the "District") pursuant to Arizona Revised Statutes, Section
48-701 et seq., and (iii) facilitate development of the Property by providing for and establishing
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 housing,
recreation/open space, commercial/business opportunities and other matters relating to the
development of the Property as described in that certain conceptual master plan attached hereto
as Exhibit "C" and incorporating the development regulations and procedures referred to in
paragraph 4 below (the "Conceptual Master Plan"), when the Property is annexed into the town
limits of the Town, all in accordance with the Marana General Plan -1987- (the "General Plan")
and in concert with the development of the Phase I & II Property.
C. The Developer and the Town acknowledge that the ultimate development of the
Property into an integral part of the fabric of the Town is a project of such magnitude that the
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Developer requires assurances from the Town of the Town's willingness to approve, and to use
. its reasonable efforts to expedite the approval of, (i) the annexation of the Property into the town
limits of the Town, (ii) the formation of a community facilities district, and (iii) the development
of the Property as planned, before it will expend substantial efforts and incur substantial costs
in the initial development of the Property. The Developer, desirous of obtaining assurances of
its ability to develop and continue the future development of the Property consistent with the
General Plan, has filed with the Town prior to the execution of this Agreement the Conceptual
Master Plan, and wishes to file with the Town the annexation petition and the District petition.
The Town, desirous of encouraging the development of the Property in the Town consistent with
the General Plan, wishes to approve the annexation of the Property, authorize the proposed uses
of the Property set forth in the Conceptual Master Plan (including the types of land uses,
densities and intensities of such land uses as set forth therein), and cooperate with the Developer
and expedite the establishment of the District and the rezoning and other development approvals
for the Property in accordance with the Conceptual Master Plan, the General Plan, a General
Infrastructure Plan and the applicable zoning provisions of the Town as described herein, and
consistent with the development of the Phase I & II Property. The Town and the Developer
acknowledge and agree that the public convenience and necessity would be furthered by the
annexation of the Property, formation of the District and approval of the Conceptual Master
Plan.
D. It is the intention of the Developer to develop the Property within the corporate
limits of and subject to the planning and regulation of the Town pursuant to all applicable laws,
regulation, ordinances and resolutions as described herein and pursuant to the terms of this
Agreement.
E. The Town and the Developer desire to enter into this Agreement to implement the
Conceptual Master Plan in accordance with the General Plan, and to implement a General
Infrastructure Plan through the use of the District. The Town and the Developer understand,
acknowledge and agree (i) that this Agreement is a "Development Agreement" within the
meaning of, and entered into pursuant to the terms of, Arizona Revised Statutes, Section 9-
500.05, as amended, (ii) that the terms of this Agreement are binding upon the Town and the
Developer and their successors and assigns, (iii) that this Development Agreement shall become
operative immediately upon the completion of the annexation proceedings as provided in this
Agreement, without further notice or action, (iv) that the terms of this Agreement run with the
affected land, and (v) that this Development Agreement shall, to the extent feasible, be
implemented and the Property developed consistent with the development of the Phase I & II
Property and pursuant to the previous agreements (described herein) entered into with the Town
relating to the development of the Phase I & II Property.
F. The Town finds that the annexation and development of the Property pursuant to
this Agreement will result in significant planning and economic benefits to the Town and its
residents by (i) requiring development of the Property consistent with the Town's General Plan
and its regulations, (ii) providing open space and recreational areas, (iii) increasing tax and other
revenues to the Town based on businesses and improvements to be constructed on the Property,
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and/or (iv) creating jobs through the construction and operation of new businesses to be located
on the Property.
AGREEMENT
In reliance upon and for the reasons set forth above and in consideration of the covenants
set forth herein, the parties hereto agree as follows:
1. Annexation.
In consideration of the execution of this Agreement by the Town, the Developer agrees
to sign and deliver an annexation petition to the Town pursuant to Arizona Revised Statutes,
Section 9-471 et seq., to annex the Property into the corporate boundaries of the Town. Such
petition shall be submitted within two (2) weeks after the execution of this Agreement, or as may
be extended by a written agreement of the Town and the Developer. Upon presentation of a
legally sufficient annexation petition, the Town shall undertake to perform all necessary acts and
procedures in order that the Property is annexed into the corporate boundaries of the Town,
including approval of an annexation ordinance at the next available meeting of the Town
Council.
2. Community Facilities District.
Upon annexation of the Property within the corporate boundaries of the Town, the
Developer shall be entitled to file with the Town a petition for formation and the General
Infrastructure Plan of the District. All terms, conditions and procedures for the formation,
organization and operation of the District shall, to the fullest extent appropriate, be those same
terms, conditions and procedures set forth for the Phase I Property as described in that
Development Agreement dated June 6, 1989, by and between the Town and Developer, recorded
on June 14, 1989, at Docket 8558, Page 1450, records of Pima County, Arizona (the "Phase
I CFD Development Agreement") as of the date thereof, which CFD Development Agreement
is hereby acknowledged and made a part of and incorporated into this Agreement in its entirety.
At the option of the Developer, the Developer may elect to form a new, separate District or,
alternatively, to include all or a part of the Property within the community facilities district
authorized and approved for the Phase I Property pursuant to the Phase I CFD Development
Agreement; provided, however, that if a separate District is formed for the Property, the board
of directors of the District may, at the option of the Town, consist of the members of the Town
Council serving ex officio.
3. Fair Share Ordinance.
Pursuant to the Prior Pre-Annexation Agreement executed August 2, 1988 by the Town
and Developer's predecessor in title, the Town agreed to develop and adopt a "Fair Share"
Ordinance consistent with the Marana General Plan policy "to provide developers with a
reimbursement mechanism to ensure pay back of public improvements." The Fair Share
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Ordinance was to be adopted by the Town on or before August 2, 1991, but the Town and
'Developer have mutually agreed to extend the adoption date to August 2, 1992. The Town
hereby reaffirms its obligation to adopt the Fair Share Ordinance in accordance with the terms
set forth in the August 2, 1988 Prior Pre-Annexation Agreement, and the parties confirm that
the adoption date has been extended to August 2, 1992.
4. Improvements.
The parti~ hereto recognize and acknowledge that the development of the Property and
the resulting augmentation of residential, commercial and/or recreational activities upon and
about the Property which directly benefit the Town will increase the traffic flow upon certain
arterial roadways. The parties hereto further acknowledge that such development shall increase
the need for construction of certain roadways designated on the attached Exhibit "D", along with
related improvements. The parties hereto also recognize and acknowledge that the Town does
not have the current financial capacity to construct the necessary public roadway improvements
upon and about the Property. Accordingly, following annexation of the Property, the Developer
intends (but is not required) to construct in phases all or a part of the public roadway and related
improvements described on the attached Exhibit "D" from time to time (and such other roadway
improvements as are mutually approved by the Town and the Developer) and to dedicate same
for the use and benefit of the residents of the Town and the public at large. Because of the
benefit to the public health, welfare and safety if such public improvements are constructed and
because of the increase in the Town's revenues which will result from sources located upon or
about the Property, the Town will establish a funding mechanism and shall reimburse the
Developer (or its assignee) in full upon request of the Developer (or its assignee) for all actual
out of pocket costs and expenses incurred in the construction of such public improvements
subject, however, to the conditions and limitation set forth below:
A. The Town shall not be required to reimburse the Developer for any portion
of such public improvements unless a luxury resort hotel of no less than 200 rooms
with related recreational facilities has previously been completed and is operating
either on the Property or on the Phase I & II Property and within the limits of
the Town.
B. The reimbursement funding mechanism and source of funds shall not be
designated at this time but the funds may be derived from one or more of the following
sources:
1. A Municipal Property Corporation;
2. Sales Taxes;
3. Highway Users Funds;
4. Local transportation assistance funds; and
5. Other development related funds.
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C: At the time of any requests for reimbursement hereunder, the Town shall
not be required to reimburse the Developer for any amount in excess of one-half (112)
of the amount of all transaction privilege taxes and sales taxes previously received by the
Town in the fiscal year from room charge, golf charges~ food and beverage and retail, .
sales at the hotel facility described in subparagraph A above. Requests for
reimbursement shall be made once per fiscal year no later than April 1, and shall be paid
in the next fiscal year. Notwithstanding the reimbursement obligations contained in both
the prior _Pre-Annexation Agreements and in this Agreement, the Town shall not be
required to provide reimbursements to Developer or its successors in excess of the
amount equal to one-half of the hotel facilities sales taxes described above in any fiscal
year.
D. The reimbursement amount shall be based upon an engineer's certification
of the improvements made by the Developer. The engineer shall be mutually approved
by the Developer and the Town and approval shall not be unreasonably withheld.
E. No reimbursement shall exceed the outstanding balance of the
unreimbursed construction cost of the improvements. '
F. The Town shall not be required to pay any further reimbursements from
and after the twentieth (20th) anniversary of the complete execution of this Agreement
irrespective of whether or not the Developer has by then been reimbursed in full for the
construction of the public improvements. .
G. The Town shall not be required to reimburse the Developer (or its
assignee) for any portion of such public improvements not located within the town limits
of the Town at the time such improvements are constructed.
H. The Town acknowledges that the construction of the public roadway
improvements as described on Exhibit "D" and other public roadway improvements to
provide access to and through the Property are necessary for the development of the
Property, will promote the health, safety and welfare of the residents of the Town, and
might require condemnation by the Town of certain real property to acquire right-of-way
for access or improvements for the roadway improvements to the Property. Recognizing
the Town's interest in the construction of the public roadways and the future development
of the Property, it is determined to be in the public interest and the Town agrees to
initiate and diligently pursue condemnation of any real property necessary for the
construction of the roadway improvements; provided, however, that the Developer shall
pay all costs, expenses, judgment and award of such condemnation. The Town and the
Developer shall cooperate in the preparation for, and preparation of evidence in, the
condemnation proceedings, and in the selection of legal counsel and witnesses. The
Town agrees to use its best efforts to convince all real property owners from whom
condemnation would otherwise be required to voluntarily dedicate their property for the
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roadway improvements.
1. Nothing contained in this Agreement shall be construed to represent
approval by the Town of the proposed alignment or realignment of the roads as
contained on Exhibit "D". The Town Council specifically reserves the right to approve.
the alignment or realignment of such roads at such future time that commencement of
construction is contemplated.
5. Development In Accordance With Conceptual Master Plan.
Concurrently with the approval and execution of this Agreement, the Town shall approve
the Conceptual Master Plan for development of the Property. The Property shall be developed
in accordance with the Conceptual Master Plan as may be amended from time to time, which
Conceptual Master Plan sets forth the basic land uses, densities and intensities of such land uses
as presently intended for the Property. The development regulations and procedures applicable
to the Property shall, to the fullest extent appropriate, be those same regulations and procedures
applicable to the Phase I Property, as more fully set forth in the Specific Plan for the Phase I
Property dated May 22. 1989, which is incorporated herein by reference, and which regulations
and procedures are hereby deemed incorporated into and a part of the Conceptual Master Plan.
The approval by the Town of the Conceptual Master Plan and this Agreement constitutes an
affirmative representation by the Town, on which the Developer is entitled to rely, that the
Developer (a) shall be authorized to implement and proceed with the land uses, densities and
intensities, as set forth within the Conceptual Master Plan as may be amended from time to time
pursuant to paragraph 8, below, or any subsequent specific area plan submitted by the Developer
in accordance with the Conceptual Master Plan, and subject only to the development regulations
contained therein, notwithstanding any subsequent changes of the zoning or land use controls
applicable to the Property adopted after the date of this Agreement, or any amendments thereto
or to the Conceptual Master Plan and (b) will be accorded through the legally required
development process the approvals reasonably necessary to permit the Developer to implement
the Conceptual Master Plan in accord with the development review and approval process as set
forth in the Conceptual Master Plan. More specifically, the Town agrees to approve or issue
such permits plans specifications, plats, rezonings and/or specific area plan for the Property as
may be requested by the Developer and reasonably required consistent with the Conceptual
Master Plan. The Town's failure, without just cause as provided in this Agreement, to approve
the permits, plans, specifications, plats, rezonings, specific area plan and other matters
reasonably necessary to permit the Developer to implement the Conceptual Master Plan, as the
same may be modified from time to time, or any action by the Town which would otherwise
preclude the Developer from realizing the land use, densities or intensities specified in the
Conceptual Master Plan, subject only to the development regulations contained therein or such
rules, regulations or official policies of the Town as provided in paragraph 5, below, shall be
a breach of this Agreement; provided, however, that nothing herein shall preclude the Town
from the reasonable exercise of its enacted or promulgated review processes.
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6. Regulation of Development.
The rules, regulations and official policies applicable to and governing the development
of the Property shall be those rules, regulations and official policies as adopted in the Conceptual .
Master Plan and the Town's which are existing and in force upon the execution of this
Agreement, and the Town shall not impose or enact any additional conditions, exactions,
dedications, fees, rules or regulations applicable to or governing the development of the Property
except only as follows: (i) future land use rules, regulations and official policies of the Town
which are not --contrary to existing land use regulations applicable to and governing the
development of the Property or of which the application to the Property has been consented to
in writing by the Developer, (ii) future land use rules, regulations and official policies of the
Town enacted in order to comply with future state and federal laws and regulations, provided
that in the event that state or federal laws or regulations prevent or preclude compliance with
this Agreement or the Conceptual Master Plan, such provision of this Agreement or the
Conceptual Master Plan shall be modified as may be necessary in order to comply with such
state and federal laws and regulations, (iii) future generally applicable land use rules, regulations
and official policies of the Town reasonably necessary in order to protect the public health and
safety and not arbitrarily imposed, (iv)future modifications of taxes or filing, review or
regulatory fees, if such taxes or fees are generally applicable throughout the Town, and (v)
impact fees imposed for only regional storm water retention and detention purposes.
7. Moratorium.
The parties acknowledge and agree that the Conceptual Master Plan contemplates and
provides for the phasing of the development of the Property and that, except as expressly
provided in this Agreement, no moratorium, ordinance, resolution or other land use rule or
regulation or limitation on the conditioning, rate, timing or sequencing of the development of
the Property or any portion thereof shall apply to or govern the development of the Property
during the term hereof, whether affecting parcel or subdivision maps (whether tentative, vesting
tentative, or final), building permits, occupancy permits or other entitlements to use issued or
granted by the Town. In the event of any such subsequent action, the Developer shall continue
to be entitled to apply for and receive approvals for the implementation of the Conceptual Master
Plan in accordance with the rules, regulations and official policies applicable to and governing
the development of the Property existing and in force 'upon the execution of this Agreement
pursuant to paragraph 5, above, subject only to those future matters set forth in paragraph 5,
above, and in this Agreement.
8. Periodic Review and Reports.
After annexation of the Property within the town limits of the Town, the Town and the
Developer may meet at the request of either party to review and update the status of the
development of the Property and to consider any amendments to the Conceptual Master Plan Or
this Agreement or any other plan. Either party may schedule such meeting upon reasonable
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prior notificatioI1 to the other party. Upon written request of the Town, the Developer shall
&ubmit reports, not more frequently than twice annually, to the Town, reviewing and updating
the status of the development of the Property.
9. Amendments To Conceptual Master Plan and A~reement.
The parties agree to cooperate and pursue any amendments to the Conceptual Master Plan
and this Agreement which are reasonably necessary to accomplish the goals expressed in the
Conceptual Master Plan and herein and the development of the Property in light of any changes
in market conditions or development requirements. All amendments to the Conceptual Master
Plan or this Agreement shall be in writing and must be approved and signed by both parties.
Any amendment to the Conceptual Master Plan shall be approved by the Town as set forth in
the Conceptual Master Plan, Le., by ordinance. Any amendment to this Agreement shall be
approved and recorded pursuant to paragraph 12.10, below.
10. Cooperation And Alternative Dispute Resolution.
10.1 Appointment of Representatives. To further the commitment of the parties to
cooperate in the implementation of the Conceptual Master Plan and this Agreement, the Town
and the Developer each shall designate and appoint a representative to act as a liaison between
the Town and its various departments and the Developer. The initial representative for the
Town (the "Town Representative") shall be the Town Manager, and the initial representative for
the Developer shall be the Project Manager. 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 pursuant to the Conceptual Master Plan. The representatives may
recommend amendments to the Conceptual Master Plan or this Agreement which may be agreed
upon by the parties pursuant to paragraph 8, above.
10.2 Expedited Town Decisions. The implementation of the Conceptual Master Plan
shall be in accordance with the development review process as set forth in the Conceptual Master
Plan. The Town and the Developer agree that the Developer must be able to proceed rapidly
with the development of the Property and that, accordingly, and expedited Town review process
is necessary. Accordingly, the parties agree that if at any time the Developer believes that an
impasse has been reached with the Town Staff on any issue affecting the Property, the Developer
shall have the right to immediately appeal to the Town Representative for an expedited decision
pursuant to this paragraph. If the issue on which an impasse has been reached is an issue where
a final decision can be reached by the Town Staff, the Town Representative shall give the
Developer a final decision within fifteen (15) business days after the request for an expedited
decision is made. If the issue on which an impasse has been reached is one where a final
decision requires action by the Town Council, the Town Representative shall be responsible for
scheduling a Town Council hearing on the issue within four (4) weeks after the request for an
expedited decision is made; provided, however, that if the issue is appropriate for review by the
Town's Planning Commission, the matter shall be submitted to the Commission first, and then
to the Town Council. Both parties agree to continue to use reasonable good faith efforts to
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resolve any impasse pending any such expedited decision.
11. Default.
Failure or unreasonable delay by either party to perform any term or provision of this. .
Agreement for a period of ninety (90) days (the "Cure Period") after written notice thereof from
the other party shall constitute a default under this Agreement; provided that the Cure Period
shall commence to run upon the Developer's appeal for an expedited decision pursuant to
paragraph 9, above. Said notice shall specify the nature of the alleged default and the manner
in which said default may be satisfactorily cured, if possible.
12. Notices And Filings.
12.1 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, delivered or served if in writing and delivered personally or sent by registered or certified
United States mail, postage prepaid, if to:
The Town, the
Town Council,
the Town Clerk:
Town of Marana
13251 N. Lon Adams Road
Marana, Arizona 85653
Attn: Town Manager
The Developer:
Tortolita Mountain Properties
Limited Partnership
4320 North Campbell Avenue
Suite 226
Tucson, Arizona 85718
or to such other addresses as either party hereto may from time to time designate in writing and
deliver in a like manner.
12.2 Mailing Effective. Notices, filings, consents, approvals and communication given
by mail shall be deemed delivered seventy-two (72) hours following deposit in the U.S. mail,
postage prepaid and addressed as set forth above.
13. General.
13.1 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
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or any other cov.enant or condition of this Agreement.
13.2 Attorneys' Fees: Reimbursement. In the event either party hereto finds it
necessary to bring an action at law or other proceeding against the other party to enforce any
of the terms, covenants or conditions hereof, or by reason of any breach or default hereunder, . .
the party prevailing in any such action or other proceeding shall be paid all reasonable costs and
reasonable attorney's 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 _flot by jury. Developer agrees to reimburse the Town for all necessary and
reasonable attorney's fees and costs incurred by the Town in negotiating and evaluating this
Agreement; provided, however, that the Town shall provide to Developer for approval, prior
to the incurring of any such fees or costs, an estimate of the attorneys' fees and costs (excluding
those of the official Town Attorney and Town Engineer) to be so incurred.
13.3 Counter:parts. 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.
13.4 Headings. The descriptive headings of the paragraphs of this Agreement are
inserted for convenience only and shall not control or affect the meaning or construction of any
of the provisions hereof.
13.5 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.
13.6 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 application for
plat or permit approvals or revisions, and other necessary approvals relating to the development
of the Property by the Developer and its successors.
13.7 Future Effect.
(a) 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 and
assigns of the parties hereto, except as provided in paragraph 12.7(b), below, with respect to
any Public Lot. Notwithstanding the foregoing, the Developer's rights and obligations hereunder
may only be assigned by a written instrument, recorded in the Official Records of Pima County,
Arizona, expressly assigning such rights and obligations. In the event of a complete assignment
by the Developer of all rights and obligations of the Developer hereunder, the Developer's
liability hereunder shall terminate effective upon the assumption by the Developer's assignee,
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provided that the"Town has approved the assignment to such assignee, which approval shall not
unreasonably be withheld.
(b) 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 Property affecting or obligating the ultimate users of the Property other than
the obligations of properly levied taxes and assessments. 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 purchaser or user thereof (a "Public
Lot") and thereupon such Public Lot shall be released from and no longer be subject to or
burdened by the provisions of this Agreement. This Agreement shall terminate automatically
upon the date fifty (50) years from the date hereof; provided, however, that the termination date
of this Agreement may be extended for one additional fifty (50) year period upon the written
consent of the parties to this Agreement executed prior to the termination date. Termination of
this Agreement shall have no effect on the validity of any community facilities district formed
pursuant to this Agreement.
13.8 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 (other than successors and assigns pursuant to paragraph 12.7 above), and no such
other person, firm, organization or corporation shall have any right or cause of action hereunder.
13.9 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 understandings of the parties, oral or written, are hereby
superseded and merged herein, except to the extent the terms thereof are expressly incorporated
herein by reference.
13.10 Amendment. No change or addition is to be made to this Agreement except by
a written amendment executed by the parties hereto. Within ten (10) days after any amendment
to this Agreement, such amendment shall be recorded, at the Developer's expense, in the
Official Records of Pima County, Arizona.
13.11 Names and Plans. The Developer shall be the sole owner of all names, titles,
plans, drawings, specifications, ides, programs, designs and work products of every nature at
any time developed, formulated or prepared by or at the instance of the Developer in connection
with the Property; provided, however, that in connection with any conveyance of portions of the
Property to the Town such rights pertaining to the portions of the Property so conveyed shall
be assigned, to the extent that such rights are assignable, to the Town. Notwithstanding the
foregoing, the Developer shall be entitled to utilize all such materials described herein to the
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extent required for the Developer to construct, operate or maintain improvements relating to the
Property, and the Town shall be entitled to utilize all such materials described herein to the
extent required by the Town to construct, operate or maintain improvements financed by the
Town.
13.12 Good Standing: Authority. Each of the parties represents and warrants to the
other (i) that it is duly formed and validly existing under the laws of Arizona as respects the
Developer, and (ii) as respects the Town, that it is an Arizona municipal corporation validly
existing and duly -qualified to do business in the State of Arizona and is in good standing under
applicable state laws, and (Hi) 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.
13.13 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 required hereunder, the Developer shall be entitled to terminate this
Agreement.
13.14 Governing Law. This Agreement is entered into in Arizona and shall be
construed and interpreted under the laws of Arizona. In particular, this Agreement is subject
to the provisions of A.R.S. Section 38-511.
13.15 Recordation. No later than ten (10) days after this Agreement has been executed
by the Town and the Developer, it shall be recorded in its entirety, at the Developer's expense,
in the Official Records of Pima County, Arizona.
13.16 No Developer Representations. 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, and the Conceptual Master Plan shall not be deemed a representation or warranty by
the Developer of any kind whatsoever.
13.17 Default and Remedies. If any party to this Agreement is in default under any
provision of this Agreement, the non-defaulting party shall be entitled, without prejudice to any
other right or remedy that it may have under this Agreement, at law or in equity, to specific
performance by the defaulting party of this Agreement (and each of the parties hereto hereby
waives the defense that the opposing party has an adequate remedy at law), or, in the alternative,
to terminate this Agreement and to exercise any or all other remedies available to it at law or
in equity.
12
13.18 Hold Harmless. The Developer hereby agrees to defend, indemnify and hold
harmless the Town, but only to the extent authorized by law, from any and all claims and costs,
including but not limited to reasonable attorneys' fees, and other reasonable administrative,
consultant or other reasonable costs, actually directly incurred by the Town in any subsequent
judicial or administrative proceeding challenging the approval or execution of this Agreement.
The Town Agrees that the Developer shall have the right to intervene and assist in the defense
of any legal action arising out of the approval or execution of this Agreement and to participate
fully in any negotiations and settlement involving any such actions. The Developer further
warrants that reimbursement will be made promptly to the Town for any of the above referenced
costs incurred or claims made within ten (10) days of the Developer's receipt of prior written
demand for payment from the Town. The Developer further agrees that, in the event of its
failure to pay the Town for any reasonable costs incurred or claims made as set forth above in
a prompt and timely manner, the Developer shall pay the Town's reasonable attorney's fees and
costs incurred in the collection of same.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
13
I .
, ~, ~
APPROVED AS TO FORM
Date: IJ/- /0 - f;L
ATTEST:
TORTOLlTA MOUNfAIN PROPERTIFS lJMITED
PARTNERSHIP, an Arizona limited partnership
BY: WESTINGHOUSE COMMUNITIES OF
ARIZONA, INC., an Arizona
corporation, its managing
general partner
By:
Its'
TOWN OF MARANA, an Arizona municipal
corporation
By: ()LA J /J1 ~
Its' >>/7~
14
I ,
.
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing document was acknowledged before me the day of ,
1991, by , the of
WESTINGHOUSE COMMUNITIES OF ARIZONA, INC., an Arizona corporation, which is
managing general partner of TORTOLITA MOUNTAIN PROPERTIES LIMITED
P ARTNERSffiP, an Arizona Limited partnership, on behalf of said corporation as managing
general partner of the limited partnership.
Notary Public
My commission expires:
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing document was acknowledged before me the day of ,1991, by
, the Mayor of TOWN OF MARANA, and Arizona municipal corporation,
for and on behalf of said municipal corporation.
Notary Public
My commission expires:
15
List of Exhibits
A. Legal Description of the Property
B. Map depicting Property
C. Conceptual Master Plan
D. Public Roadway Improvements
16
..... ,~,
,\ A'l
JERRY A. COLLINS
. RAUL FCO. G. PINA. P.E.. R.LS.
BAYARD T. STEVENSON III. P.E.. R.LS.
ALEXANDER D. BATT, P.E.
HAROLD "HAL" EPPERSON, P.L.S.
JOHN A. LUNDBERG. P.E.. R.l.S.
Collins-Pina Consulting Engineers, Inc.
630 East 9th Street, Tucson, Arizona 85705
Phone (602) 623-7980 FAX (602) 884-5278
LEGAL DESCRIPTION
(BASED ON 1987 SURVEY)
Portions of Sections 14, 15, 16, 21, 22 and 23, Township 11
South, Range 12 East, Gila and Salt River Base and Meridian,
Pima County, Arizona, more particularly described as follows:
Commencing at the Southeast corner of said Section 23, said
point being a found brass capped glo pipe;
Thence North 00001'1511 East, upon the East line of said
Section 23, a distance of 1320.25 feet to a capped pipe marked
IIRLS 1659711 at the South 1/16th cOJ?ner between Sections 23 and
24, said point being the Point of Beginning;
Thence South 89038'31". West, upon the 1/16th line, a distance
of 2,649.76 'feet to a capped pipe marked IIRLS 16597" at the
center South 1/16th corner of Section 23;
Thence South 89052105" West, upon the 1/16th line, a distance
of 2,634.06 feet to a capped pipe marked "RLS 16597" at the
South 1/16th corner between Sections 22 and 23;
Thence North 89057'26" West upon the 1/16th line, a distance
of-2,633.48 feet to the capped pipe marked IIRLS 16597" at the
Center South 1/16th corner of Section 22;
Thence North 89057125" West upon the 1/16th line, a distance
of 2,634.49 feet to a capped pipe marked "RLS 16597" at the
South 1/16th corner between Sections 21 and 22;
Thence North 00005'36" West upon the section line a distance
of 1,318.42 feet to a scribed glo stone at th.e East 1/4 of
Section 21;
Thence North 89048'34" West upon the interior 1/4 line, a
distance of 2,639.44 feet to a capped pipe marked "RLS 16597"
at the Center 1/4 of Section 21;
~
Thence North 89048'34" West upon the interior 1/4 line, a
.
distance of 2,637.46 feet to a scribed glo stone at the West
1/4 of Section 21;
Thence North 00001'56" East upon the section line, a distance
of 2,634.58 feet to a scribed glo stone at the Northwest
corner of Section 21;
Thence North 00000'49" East upon the West line of Section 16,
a distance of 800.79 feet to a capped pipe marked "RLS 16597";
Thence North 45000'00" East, a distance of 1,594.41 feet to a
capped pipe marked "RLS 16597";
Thence North 00000'00" East, a distance of 1,015.18 feet to a
capped pipe marked "RLS 16597";
Thence North 30000'00" East, a distance of 800.00 feet to a
capped pipe marked "RLS 16597";
Thence South 30000'00" East, a distance of 745.00 feet to a
capped pipe marked IIRLS 1659711;
Thence North 60000'00" East, a distance of 1,206.70 feet to a
capped pipe marked "RLS 16597";
Thence South 90000'0011 East, a distance of 700.00 feet to a
capped pipe marked IIRLS 1659711;
Thence South 30000'0011 West, a distance of 850.00 feet to a
capped pipe marked IIRLS 1659711;
Thence South 60000100" East, a distance of 250.00 feet to a
capped pipe marked "RLS 16597";
Thence North 60000'00" East, a distance of 1,300.00 feet to a
capped pipe marked "RLS 16597";
Thence South 30000'00" East, a distance of 8.00.00 feet to a
capped pipe marked "RLS .16597";
Thence South 90000100" East, a distance of 325.86 feet to a
capped pipe marked "RLS 16597"on the section line from which
the East 1/4 of Section 16 bears South 00014116" East, a
distance of 79.35 feet and is a glo brass capped pipe;
Thence South 90000'00" East, a distance of 229.27 feet to a
capped pipe marked "RLS 16597";
Thence North 60000100" East, a distance of 900.00 feet to a
capped pipe marked IIRLS 16597";
Thence North 00000100" East, a distance of 273.90 feet to a
capped pipe marked IIRLS 16597";
.:
Thence Worth 45000'0011 West, a distance of.521.85 feet to a
capped pipe marked IIRLS 1659711;
Thence North 30000'0011 East, a distance of 1,179.16 feet to a
capped pipe marked IIRLS 1659711;
Thence South 30000'0011 East, a distance of 400.00 feet to a
capped pipe marked IIRLS 1659711;
Thence South 90000'0011 West, a distance of 2,534.54 feet to a
capped pipe marked I1RLS 1659711;
Thence South 30000'0011 West, a distance of 1,469.06 feet to a
capped pipe marked "RLS 16597";
Thence South 45000'00" West, a distance of 1,000.00 feet to a
capped pipe marked IIRLS 1659711;
Thence South 30000'00" East, a distance of 600.00 feet to a
capped pipe marked "RLS 1659711;
Thence South 90000'0011 East, a distance of 850.00 feet to a
capped pipe marked "RLS 16597";
Thence North 45000'00" East, a distance of 900.00 feet to a
capped pipe marked "RLS 1659711;
Thence South 90000'0011 East, a distance of 700.00 feet to a
capped pipe marked "RLS 16597";
Thence South 60000'0011 East, a distance of 293.91 feet to a
capped pipe marked "RLS 16597" on the section line from which
the East 1/4 of Section 15 bears North 00005'20" East, a
distance of 144.55 feet and is a glo brass capped pipe;
Thence South 60000'00" East, a distance of 369.55 feet to a
capped pipe marked "RLS 16597";
Thence North 60000'00" East, a distance of 1,065.48 feet to a
capped pipe marked "RLS 16597";
Thence North 00000'0011 East, a distance of 1,500.00 feet to a
capped pipe marked "RLS 16597";
Thence North 45000'0011 East, a distance of 1,100.00 feet to a
capped pipe marked IIRLS 1659711;
Thence South 60000'00" East, a distance of 2,683.43 feet to a
capped pipe marked "RLS 1659711;
Thence South 45000'0011 West, a distance of 1,982~42 feet to a
capped pipe marked IIRLS 1659711;
..
# ...' ..
Thence South 90000'00" East, a distance of 1,902.26 feet to a
capped pipe marked "RLS 16597";
Thence South 30000'00" West, a distance of 2,402.25 feet to a
capped pipe marked "RLS 16597";
Thence South 30021'17" East, a distance of 298.00 feet to a
capped pipe marked "RLS 16597" on the section line from which
the South 1/4 of Section 14 bears South 89032'18"' West, a
distance of 1,164.39 feet and is a glo brass capped pipe;
Thence South 30000'00" East, a distance of 1,900.00 feet to a
capped pipe marked "RLS 16597";
Thence South 60000'00" East, a distance of 614.87 feet to a
capped pipe marked "RLS 16597" upon the East line of Section
23;
Thence South 00"06'46" East upon the section line, a distance
of 672.05 feet to the calculated.East 1/4 corner of Section
23;
Thence South 00001'15" West upon the section line, a distance
of 1,320.25 feet to a capped pipe marked "RLS 16597" at the
South 1/16th between Sections 23 and 24, said point being the
Point of Beginning;
Above described land contains 102,264,428 square feet or
2,347.7 acres, more or less.
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