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HomeMy WebLinkAboutResolution 93-040 development agreement with california portland cement companyRESOLUTION NO. 93-40 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING A DEVELOPMENT AGI~EF. MENT WITH CALIFORNIA PORTLAND CEMENT COMPANY. WI4EREAS, the Town is empowered, pursuant to A.R.S. § 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 Mararia and California Portland Cement Company (hereinafter the "Development Agreement") a copy of which is attached hereto and made a part hereof; and WHEREAS, 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. BE IT RESOLVED, that the Development Agreement between the Town of Martha and California Portland Cement Company attached hereto is hereby approved. BE IT FURTI-~R RESOLVED, that the Mayor is hereby empowered to exeeute the attached Development Agreement on behalf of the Town of Marana. WHEREAS, the immediate operation of the Resolution is necessary for the preservation of the public peace, health and safety of the Town of Martha, 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 Mararm, Arizona, this 21st day of December, 1993. MAYOR ORA H/a, RN AP RP~VED AS TO FORM: When recorded. return to- John H. Renninger, Esq. California Portland Cement Company 2025 East Financial Way Glendora, CA 91741 DEVELOPMENT AGREEMENT )?AIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the,?/-f7' day of 1993, by and between the TOWN OF MARANA, an Arizona municipal rpo co ' ratron (the "Town"), and CALIFORNIA PORTLAND CEMENT COMPANY, a California corporation (the "Developer"). - RECITALS A. Developer is the owner of that real property located in Pima County, Arizona and adjacent to the Town, consisting of approximately 422.5 acres, legally described on Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"). B. The Developer and the Town desire that the Property be annexed into the corporate limits of the Town and be developed as an integral part of the Town, and in accordance with the existing General Plan for the Town. The annexation and development of the Property pursuant to this Agreement is acknowledged by the parties hereto to be consistent with the Town's General Plan and operate to the benefit of the Town, the Developer and the general public. C. Arizona Revised Statutes 9-500.05 authorizes the Town to enter into binding development agreements with landowners or other persons or entities having an interest in real property located in the Town. The Town and the Developer are entering into this Agreement pursuant to the provisions of A.R.S. 9-500.05 in order to facilitate development of the Property, to avoid waste of resources and escalation in the cost of housing and other development to the consumers thereof and to encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public, by providing for, among other things, conditions, terms, restrictions and requirements for the construction of public infrastructure as more particularly described herein, and the financing for such public infrastructure improvements; certainty and the approvals necessary for the development of the Property, including land uses, densities and intensities; and by providing assurances to the Developer that it may proceed with development of the Property in accordance with the Town's existing land use policies, rules and regulations. D. The Developer intends to develop the Property as a large scale, mixed use development for the uses and purposes set forth in the Development Plan for the Property, which has been prepared and filed with the Town prior to the date of this Agreement and which has been approved by the Town. A copy of the plan is attached hereto as Exhibit "B" and incorporated herein by this reference (hereinafter referred to as the "Development Plan"). The development of the Property requires substantial early and major capital expenditures and investments with respect to the construction of major infrastructure facilities. Because development of the Property is a project of such great magnitude, the Developer requires assurances from the Town that the Developer will be able to complete development of the Property pursuant to the Development Plan before it will expend substantial efforts and costs in such development. The Town, in order to encourage development of the Property consistent with the General Plan of the Town, has approved the proposed uses set forth in the Development Plan and adopted with zoning classifications, land uses, and densities and intensities consistent with the Development Plan, and agrees to cooperate in good faith with the Developer to expedite the approval and granting of permits, site plans, rezoning applications, plats and other development approvals for the Property in accordance with the Town's General Plan, the Development Plan and this Agreement. In reliance on the Town's execution of this Agreement and its agreement and representations that it will approve the development of the Property in accordance with the Development Plan (which reliance is acknowledged to be reasonable), the Developer intends to (i) expend substantial effort and incur substantial costs in proceeding to refine the Development Plan, which costs include, but are not limited to, costs for pprforming marketing, infrastructure and feasibility studies; (ii) develop land use planning, architectural, engineering and landscaping designs and plans, (iii) pursue, in accordance with this Agreement, the development of the Property. E. The Town acknowledges and agrees that the 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 the development of the Property to be consistent with the Development Plan, (ii) increasing tax and other revenues to the Town based upon, among other things, the construction of improvements on the Property and the use of the Property for business purposes, and (iii) creating jobs through development of the Property and through the operation of new businesses on the Property. The Town has determined that entering into this Agreement will further the goals and objectives of the Town's general plan and its overall land use planning policies by eliminating uncertainty and planning for the orderly development of the Property so that adequate long term plans regarding the necessary on-site and off-site infrastructure for the existing and future Town residents can be developed and implemented, and the maximum effective utilization of Town resources will be pursued at the least economic cost to its citizens. The benefits conferred by the Developer herein will facilitate the installation of certain desired public improvements within the Tow - n, which will significantly promote the health, safety and general welfare of existing future Town residents. In exchange for these benefits to the Town and its residents, the Developer shall receive the assurances authorized by Arizona law that the Developer may proceed to develop the Property in accordance with the Town's existing land use ordinances, policies, procedures and regulations, at a rate of development within its discretion, subject to the terms and conditions of this Agreement. F. The Town's planning and zoning commission and council have found and determined that this Agreement: (i) is consistent with the Town's General Plan; (ii) is in the best interests of the health, safety and general welfare of the Town, its residents and the general public; (iii) is entered into pursuant to and constitutes a present exercise of the police power by the Town; and (iv) is entered into pursuant to and in compliance with the requirements of Arizona Revised Statutes 9-500.05. The assurances provided by the Town and Developer to each other herein have been provided pursuant to and as contemplated by Arizona statute, bargained and in consideration for the undertaking of the obligations of the parties as set forth herein, and are intended to be and have been relied upon by the parties to their detriment. 2 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 I. CONSTRUCTION AND FINANCING OF INFRASTRUCTURE IMPROVEMENTS. The parties acknowledge that the Property pursuant to the Development Plan will require the construction and installation of infrastructure improvements, such as streets, sewer, bank stabilization, water lines and other improvements as described in the Development Plan (collectively, the "Infrastructure Improvements"). The cost of construction of the Infrastructure Improvements may be paid for by the Developer, by a community facilities district formed to construct or acquire such improvements in accordance with the provisions hereinafter set forth, by such other means as set forth below or by such other means as may be agreed to by the parties. 1.1 Develot)er. The Developer shall have the right, but not the obligation, at any time after execution of this Agreement, to construct or cause to be constructed and installed any part or all of the Infrastructure Improvements necessary for implementation and , acquisition of effluent storage, distribution facilities and other improvements necessary to fully develop the Property in conformance with the outline of such improvements attached hereto as Exhibit "C" (the "District Infrastructure Improvement Outline). All such construction, if performed by Developer, shall be performed in a good and workmanlike manner and in compliance with all applicable laws, permit requirements, standards, codes, rules or regulations of the Town and of the State of Arizona, or the United States, as applicable, and in accordance with a map of dedication therefor, which has been filed with and approved by the appropriate governmental authorities. The Developer, its agents and employees, shall have the right to use any existing Town easements or rights-of-way to the extent reasonably necessary to facilitate such construction, and the Town shall duly execute and record all documents or instruments which may be necessary in accordance therewith. In addition, in the event any additional easements or rights-of-way are necessary in order to construct or install any part or all of the Infrastructure Improvements, and such easements or rights-of-way cannot be acquired by the Developer at a cost which Developer deems reasonable, the Town shall initiate and diligently pursue condemnation of any real property necessary for such easements or rights-of-way, as determined to be necessary by the Developer and the Town. The Developer shall pay all costs incurred by the Town in connection with the condemnation of such real property, including the full amount of any condemnation award assessed against the Town and in favor of the person or entity whose property is condemned. Upon completion of any acquisition or condemnation under this paragraph, title to the land shall vest in the Town, and the Town shall provide such easements and rights-of-way (and execute and record all necessary documents and instruments) which may be necessary in connection with the construction of the Infrastructure Improvements by the Developer. 1.2 CI-o-mmunitv Facilities District. The Town hereby agrees to cooperate with the Developer in forming a Community Facilities District (the "District") pursuant to A.R.S. 48.701 et §N (the "CFD Act") for the purpose of funding the construction or acquisition of those Infrastructure Improvements (which may include Infrastructure Improvements to be acquired from the Developer). Upon receipt of a petition filed in connection with the formation of the District signed by 100% of the owners of the 3 land within the proposed District, the Town shall approve an appropriate resolution for the formation of the District. In the event the Developer does not obtain the signatures of 100% of the owners of the land within the proposed District but obtains at least 25 % of the required signatures, the Town and the Developer shall work together to obtain the number of signatures required to form the District. Upon formation of the District, the District shall declare its intent and commit to issue its bonds, in one or more series (hereinafter referred to collectively as the "Bonds"), pursuant to the CFD Act, in amounts necessary and sufficient for the construction or acquisition of the District Infrastructure Improvements and all expenses of which may, if allowed by law, be paid out of the proceeds received from the sale of the Bonds. Upon the submission by the Developer to the Town of a valid and sufficient petition for the formation of any other community facilities district in addition to the District, the Town agrees to exercise good faith and use best efforts to expedite the formation of such district pursuant to the provisions of the CFD Act, all provisions of this Paragraph 1.2 relating to the operation of the District shall apply thereto. 1.2.1 Board of Directors of the District. The initial Board of Directors of the District shall be those individuals appointed to such positions as agreed to by the Town and the Developer and identified in the District Resolution. In the event of a vacancy occurring on the expiration of the term of an appointed board member of the District upon the death, resignation or inability of a board member to discharge the duties of such office, the District shall notify the Developer of such vacancy and give the Developer a reasonable opportunity to recommend candidates for appointment to fill the vacancy and to advise and consult with the Town in connection therewith. After considering the general qualifications of any candidates recommended by the Developer, the Town shall promptly appoint a new or interim District board member as the case may be. 1.2.2 Operation of District. The following provisions shall apply to the operation of the District and any other community facilities district formed pursuant to Paragraph 1.2 of this Agreement: (a) Ratification of Agreement. Upon formation of the District pursuant to this Agreement, the District shall, in accordance with A.R.S. 9-500.05, be deemed to be a party to this Agreement, and at the first meeting of the Board of Directors of the District, the Board of Directors shall ratify this Agreement. (b) Feasibilily Roorts. Prior to the construction or acquisition of any District Infrastructure Improvements by the District, the District's Board of Directors shall, in accordance with the CFD Act, approve a feasibility report, which report shall be prepared by the Developer or any independent qualified person or firm selected by Developer on behalf of the District. The cost of such feasibility report shall be borne by the Developer, but shall, so long as bonds are sold by the District, be reimbursed by the District in accordance with the applicable feasibility report. Each such feasibility report shall be consistent with the District's Infrastructure Plan and include the following: (i) a detailed description and plans for the infrastructure to be constructed or acquired; (ii) a detailed estimation of construction or acquisition costs and operation and maintenance costs, if any; 4 I (iii) a benefits analysis; (iv) a proposed allocation of assessment or taxes and a method of financing the acquisition or construction of such infrastructure, including any rights-of-way or improvement sites necessary therefor, and indicating specific portions of the infrastructure to be constructed or acquired as construction is completed (a "Completed Segment"); (v) an analysis of the financial feasibility of the financing method designated, specifying the type of bonds and,proposed repayment method; and (vi) a designation of the public or private entity to which such improvements will be dedicated or conveyed for continued operation and maintenance, and the timing of such dedication or conveyance. Unless otherwise agreed by the Developer, the District shall not accept any feasibility report that has not been prepared by the Developer or by a qualified independent person or firm at the request of the Developer. As soon as reasonably possible after receiving the feasibility report, the Districts Board of Directors shall consider and eith ' er approve the feasibility report as provided by the CFD Act or, acting in good faith, reject the feasibility report based upon an independent financial analysis or engineering study stating in reasonable detail that the proposed financing or the engineering design of the infrastructure improvements to be constructed or acquired is not feasible. If the District's Board of Directors approves the feasibility report, the District shall either acquire the infrastructure described therein in Completed Segments together with the sites and rights-of-way therefor from the Dev eloper pursuant to subparagraph (c) below or cause the infrastructure therein to be constructed by the District pursuant to subparagraph (d) below. (c) Acquisition of District Infrastructure Improvements by the District. The Developer may at any time construct or cause to be constructed any part or all of the District Infrastructure Improvements consistent with the District Infrastructure Plan. All such construction by the Developer shall be performed in a good and workmanlike manner and in compliance with all applicable permit requirements, standards ' codes, rules and regulations of any applicable governmental entity or agency thereof. Upon the District's approval of the feasibility report therefor, and based upon a satisfactory inspection by the District of a Completed Segment which has been constructed by the Developer, the District shall pay the Developer for the construction of such improvements in cash, and in an amount equal to the actual costs and expenses incurred in constructing said infrastructure and for acquiring the land upon which it is located and any appurtenant rights-of-way, administrative costs and the "finance cost" associated therewith, up to the maximum amount of the bond proceeds allocated for such purpose and the applicable feasibility report. The term "finance cost" as used in this Paragraph shall be deemed to mean (i) the interest, fees, points and all other amounts charged in connection with any loan or loans to the Developer for the purpose of acquiring the land and the construction 5 of the District Infrastructure Improvements thereon, or (iii) interest at the rate of 1 % over the prime rate of First Interstate Bank of Arizona, N.A., as that "prime rate" may be announced from time to time, for a portion of the land acquired or infrastructure constructed without third-party financing on the amount of the costs and expenses from the date incurred to the date reimbursed by the District. Nothing in this Paragraph shall be construed to prohibit or otherwise limit the ability of the Developer to elect to dedicate property to the District without consideration by instrument in form and content reasonably acceptable to the District. Upon completion of the construction of a Completed Segment and receipt of all payments provided in the District's resolution accepting the construction, the Developer will convey the Completed Segment, together with the underlying rights- of-way and sites described in the applicable resolution, to the District, free and clear of all liens and encumbrances and the District shall promptly accept and approve the conveyance; provided that the construction of the improvements and cost of the Completed Segment are consistent with the approved feasibility report therefor. (d) Construction of District Infrastructure Improvements by District., If the feasibility report approved by the District indicates that the District will have responsibility for the construction of all or any part of the Infrastructure Improvements described in such feasibility report, the District will publicly bid such construction work; provided, however, that in accordance with A.R.S. 480709(H) the Developer shall have the right to match the lowest bid for the construction of such Infrastructure Improvements, so long as the Developer owns at least 75% of the total land area within the real property included within the District at the time of the bid. The District shall thereafter enter into a construction agreement with the lowest bidder or the Developer, if the Developer is the lowest bidder or matches the lowest bid, for the construction of the infrastructure improvements described in the feasibility report. In the event the District determines that a construction manager is necessary to oversee the construction of such improvements, such construction manager shall be mutually-acceptable to the District and the Developer. After the construction agreement is executed, the District shall, as described in the approved feasibility report, proceed to acquire any rights-of-way or improvement sites not previously dedicated,and require the construction of the District Infrastructure Improvements described in the construction agreement to commence as soon as reasonably possible thereafter. The District shall require that all such construction or other work to be performed pursuant hereto be performed in conformity with the District Infrastructure Plan as described in the applicable feasibility report, and in a good and workmanlike manner in compliance with all applicable standards, codes, rules or regulations of any applicable governmental entity or agency thereof. (e) Operation and Maintenance. Upon the acquisition or construction by the district of Infrastructure Improvements in accordance with the applicable feasibility report therefor, the District shall own, operate and maintain in good order, condition and repair at all times, such District Infrastructure Improvements and related facilities until an agreement is entered into by the District with a Responsible Party (as described in Paragraph 1.4 below) to transfer the ownership, operation and 6 maintenance of the District Infrastructure Improvements, as described in the District Infrastructure Plan, and the applicable feasibility report therefor. The District shall contract to obtain labor, materials and equipment for the operation and maintenance of such improvements, and such contracts shall be awarded to a company or companies acceptable to the District at reasonable rates. Any such service contracts shall require that such work and service be performed in a good and workmanlike manner and in compliance with all federal, state and local statutes, laws, regulations, codes and ordinances. The District shall pay, either from applicable revenues or by levy of additional taxes as provided by the CFD Act, all costs, expenses and fees incurred in connection with such operation and maintenance as provided in an annual budget therefor, which shall include anticipated rates, charges and fees of the District, and which shall be prepared for each fiscal year during the term of the Agreement. 1.3 Other Financing Methods. Upon the Developer's request the Town agrees to exercise good faith and use best efforts to* promptly form one or more improvement districts, municipal property corporations, or industrial development authorities or to implement other sources of development financing for the purpose of financing the cost of construction and maintenance of any or all of the Infrastructure Improvements, including without limitation, sewer, drainage, bridge, roadway, flood control and recreational improvements, and whether or not the construction of such improvements is the responsibility of the Developer or a community facilities district formed pursuant hereto. 1.4 Dedication of Infrastructure Improvements. Ownership of all completed portions of the 'Infrastructure Improvements shall be dedicated by the -person or entity responsible for payment of construction of such improvements (the "Constructing Party") to the Town or other appropriate public or private entity as set forth in the Infrastructure Plan (the "Responsible Party"). By instrument in form and content acceptable to the. Constructing Party and the Responsible Party within one (1) year after completion of any portion of the Infrastructure Improvements in accordance with the Infrastructure Plan, or within such other time period as may be agreed to by the Constructing Party and the Responsible Party, and subject to acceptance by the Responsible Party as hereinafter set forth. So long as such Infrastructure Improvements are constructed in accordance with plans and specifications approved by the Responsible Party, as verified by inspection of the completed improvements by the engineer or other designated representative of the Responsible Party, the Responsible Party shall immediately thereafter accept such dedication of Infrastructure Improvements, and shall, at its own cost and expense, maintain, repair and operate such Infrastructure Improvements in accordance with its customary standards. Except as provided herein, ownership of all Infrastructure Improvements constructed by the Developer shall be maintained and operated by the Developer so long as the Developer owns the Infrastructure Improvements and prior to the dedication of such improvements to the Responsible Party. L ANNEXATION AND ZONING. 2.1 Annexation Petition. The Town, having held public meeting thereon, has, concurrently with its approval of the Agreement, duly considered and approved the annexation of the Property. As soon as reasonably possible after execution of this Agreement by the Town and the Developer, the Developer shall deliver to the Town an appropriate petition for annexation duly executed by all necessary property owners (the "Annexation Petition"). Upon receipt of the Annexation Petition, the Town shall undertake to perform all necessary acts and procedures necessary to annex the property into 7 the corporate boundaries of the Town, including without limitation, approval of an annexation ordinance at the next available meeting of the Town Council. 2.2 Applicable Zoning. Having held appropriate public hearings thereon, and having duly considered such matter, concurrently with the Town's approval of an appropriate ordinance annexing the Property to the Town, the Town agrees to adopt the zoning classifications for the Property which are identical or substantially similar to the existing zoning classifications in the Town copies of which are attached hereto as Exhibit "D" (hereinafter referred to as the "Zoning"). All Zoning with respect to the Property shall be deemed to be "vested" at such time as the Property is annexed to the Town in accordance with Paragraph 2.1 above and the approval by the Town of the Development Plan for the Property. The Town agrees that no application fees, filing fees or processing costs shall be charged by the Town to the Developer in connection with the adoption of the Zoning with respect to and upon annexation of the Property other than the annexation fee, and the specific plan review fee. Ill. DEVELOPMENT OF THE PROPERTY 3.1 Development Plan. Concurrently with the approval and execution of this Agreement and the annexation of the Property, and upon the Town's review and due consideration, the Town hereby approves the Development Plan for the development of the Property, a copy of which is attached hereto as Exhibit "B". Upon such approval, the Development Plan shall b& incorporated into and become part of the Town's General Plan for all purposes. The Property shall be developed by Developer in accordance with the Development Plan, as may be amended from time to time. Upon the approval of the Development Plan by the Town, the Developer shall be authorized to implement the uses, densities and intensities set forth in the Development Plan, and will be accorded all approvals necessary to the Town's review and approvals of rezoning applications, site plans and specifications. The Town and the Developer acknowledge that amendments to the Development Plan may be necessary from time to time in order to reflect changes in market condition, development financing and/or to meet the new requirements of one or more of the potential users or developer of any part of the Property. The parties shall cooperate in good faith to agree upon, and use reasonable best efforts to process, any amendments to the Development Plan. The Town, having exercised its discretion in approving the Development Plan, agrees to approve for issue such permits, plans, specifications, plats and/or rezoning of or for the Property as may be requested by the Developer in order to implement, and which are reasonably consistent with, the Development Plan. The Town's failure to timely approve any permits, plans, specifications, plats, rezoning, or other matters necessary to permit the Developer or any user or builder within the Property to implement the Development Plan shall be a breach of this Agreement. If and when the parties find that changes or adjustments are necessary or appropriate to be made to the Development Plan, they shall, unless otherwise required by law, effectuate such changes or adjustments through administrative amendments approved by the Town's Director of Planning and Zoning, which, after execution, shall be attached hereto as an addendum and become a part hereof, and may be further changed and amended from time to time as necessary, with the approval of the Town and the Developer. Unless otherwise required by law, no such administrative amendments shall require prior notice or hearing. Notwithstanding the foregoing, the following matters shall not be considered administrative changes or amendments, but shall be considered substantive amendments which shall be reviewed by the Planning and Zoning Commission and approved by the Town Council: (i) Alteration of the permitted uses of the Property; 8 (ii) Increase in the density or number of dwelling units; (iii) Increase in the maximum height and size of permitted buildings; and, (iv) Deletion of a requirement for the reservation or dedication of land for public purposes, except for minor boundary adjustments approved by the Planning and Zoning Director. During the term of this Agreement, the Town shall not initiate any changes or modifications to the Development Plan except at the request of the Developer or the then-owner of any portion of the Property for which such zoning change is sought. 3.2 Regulation of Develgpment. By entering into this Agreement and relying thereon, the Developer is obtaining a vested right to proceed with development of the Property in accordance with the Development Plan, but su?ject to any remaining discretionary approvals required in order to complete development of the Property as contemplated by the Development Plan (which discretion shall be exercised reasonably and in accordance with the terms of this Agreement). The rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings in the design, improvement and construction standard and specifications applicable to development of the Property are those rules, regulations and official policies in force as of the date of this Agreement, and the Town shall not impose or enact any additional conditions, exactions, dedications, development fees, rules or regulations applicable to or governing the development of the Property, except only as set forth in exhibit "C" and as follows: (i) future land use rules, regulations and official policies of the Town which are consistent with and not contrary to the existing land use regulations applicable to and governing the development of the Property, or contrary land use regulations 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 as necessary to comply with the future state and federal laws and regulations, provided that in the event any such state or federal laws prevent or preclude compliance with this Agreement, such affected provisions of this Agreement 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 in connection with bona fide public health and safety purposes and not arbitrarily imposed; and (iv) future imposition of taxes of filing or review fees, or modifications thereto, so long as such taxes or fees are imposed or charged by the Town to all persons and entities. 9 3.3 1 Moratorium. The parties hereby acknowledge and agree that the Development Plan contemplates and provides for the phasing of the development of the Property and no moratorium or future 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, building permits, occupancy permits or other entitlements to use issued or granted by the Town, except as otherwise provided in this Agreement, and except for any ordinance, resolution or regulation enacted by the Town after the date of this Agreement as may be necessary to (i) comply with any state or federal law or regulation prevents or precludes compliance with this Agreement, such affected provisions of this Agreement shall be modified as may be necessary in order to comply with such state or federal law or regulation, or (ii) alleviate or otherwise contain a legitimate, bona fide threat to the health or safety of the public, in which event any ordinance, rule or regulation to be imposed in an effort to contain or alleviate such threat may be imposed only after public hearing and comment and shall not, in any event be imposed arbitrarily. In the event of any such moratorium, future ordinance, resolution or rule and regulation, unless taken by the Town to comply with state or federal laws or to alleviate a legitimate, bona fid6 threat to public health or safety, the Developer shall continue to be entitled to apply for and receive approvals for the implementation of the Development Plan in accordance with the rules, regulations and official policies applicable to and governing the development of the Property existing and in force of the date of this Agreement. IV. COOPERATION AND ALTERNATIVE DISPUTE RESOLUTION 4. 1 Appointment of Roresentatives. To further the commitment of the parties to cooperate in the implementation of 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 and the builders and users of the Property. ne initial representative for the Town shall be the Town Manager and the initial representative for the Developer shall be the project manager for the Property. The above representatives shall meet as necessary at the request of either party to discuss and review the performance of the parties to this Agreement and the development of the Property. The representatives may recommend amendments to this Agreement, which may be agreed upon by the parties pursuant to Paragraph 7.9 below. 4.2 Cooperative Dispute Resolution: Exnedited Town Decisions. The implementation of the Development Plan shall be in accordance with the development and review process of the Town. 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 between the parties on any issues affecting the development of the Property, the Town and the Developer shall cooperate in good faith to resolve the dispute between themselves, and such disputes shall be discussed and attempted to be resolved through their representatives pursuant to Paragraph 4. 1 above. 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's representative shall give the Developer a final decision within seven (7) days after a request for a decision is made to the Town Council, the Town representative shall be responsible for scheduling a Town Council hearing on the next available Town Council agenda, but in- no event later than fourteen (14) days after the Developer requests such hearing. The Town and Developer agree to continue to use their best efforts to resolve such issue pending the Town Council hearing. 10 4.3 D-efault. Failure or unreasonable delay by either party to perform or otherwise act in accordance with any term or provision of this Agreement for a period of thirty (30) days (the "Cure Period") after written notice thereof from the other party shall constitute a default under this Agreement; provided, however, that if the failure or delay is such that more than thirty (30) days would reasonably be required to perform such action or comply with any term or provision hereof, that such party shall have such additional time as may be necessary to perform or comply so long as such party commences performance or compliance within said 30-day period and diligently proceeds to complete such performance or fulfill such obligation. Said notice shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured, if possible. In the event such default is not cured within the Cure Period, the non-defaulting party shall have all rights and remedies which may be available under law or equity, including without limitation the right to specifically enforce any term or provision hereof and/or the right to institute an action for damages. 4.4 Arbitration. Any dispute, controversy, claim or cause of action arising out of or relating to this Agreement shall be governed by Arizona law and may 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. Section 12-1501, f "se ., and judgement upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. V. NOTICE AND FILINGS 5.1 Manner of Serving. All notices, filings, consents, approvals and other communication 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 certified United States Mail, postage prepaid, return receipt requested, to: The Town, the Town Council, and the Town Clerk: Attn: Roy Loas Town of Marana 13251 North Lon Adams Road The Developer: California Portland Cement Company 2025 E. Financial Way Glendora, CA 91741 Attn: John H. Renninger, Esq. or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner. 5.2 Mailing Effective. Notices, filings, consents, approvals and communication given by mail shall be deemed delivered twenty-four (24) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above. VI. PERIODIC REVIEW The Town shall review this Agreement at least once every twelve (12) months from and after the date hereof. During each such periodic review, the Town and the Developer shall demonstrate their good faith compliance with the terms and conditions of this Agreement. Both parties shall furnish such 11 evidence of good faith compliance as may be reasonably requested by the other party. The Town's failure to review compliance with this Agreement at least annually shall not, however, constitute or be asserted by either party as a breach of this Agreement by the other party. VII. GENERAL 7.1 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 or any other covenant or condition of this Agreement. 7.2 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. 7.3 Headinas. The descriptive heading 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. 7.4 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. 7.5 Time of Essence, Further Acts. Time is of the essence in this Agreement. 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 as expeditiously as possible. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any and all requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by the Developer and its successors. 7.6 Future Effect. (a) Successors and Assigns. 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 7.6(c) below, with respect to any Public Lot as defined in Paragraph 7.6(c). 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 obligations and liabilities hereunder shall terminate effective upon the assumption of such obligations and liabilities by then Developer's assignee, provided that the Town has approved the assignment to such assignee, which approval shall not reasonably be withheld. 12 (b) Term. The term of this Agreement shall commence on the date of execution by both parties hereto and shall automatically terminate on the fiftieth (50th) anniversary of such date; provided, however, that the Developer shall have the right to extend the term hereof for one (1) additional period of fifty (5M years upon written notice delivered to the Town at least one (1) year prior to the expiration hereof. (c) Termination Upon Sale to Public. ' The Town and the Developer hereby acknowledge and agree that this Agreement is not intended to and shall not create conditions or exceptions to title or covenants running with any portion of the Property beyond the period of ownership of such portions by the Developer or any successor of the Developer who has accepted an assignment of the Developer's rights and obligations pursuant to Paragraph 7.6(a) above. Therefore, in order to alleviate any concern as to the effect of this Agreement on the status of title to any portion of the Property, notwithstanding anything contained herein to the contrary, and so long--as not prohibited by law, 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 one year) or sold to the end 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. 7.7 No Partnership: Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between the Developer and the Town. No term or provision of this Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. 7.8 Entire Agree ent. 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. 7.9 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 in the Official Records of Pima County, Arizona. 7.10 Names and Plans. The 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 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 extent required for the Developer to construct, operate or maintain improvements relating to the Property. 13 7.11 3ood Standing:Authori1y. Each of the Parties represents and warrants to the other (i) that it is duly formed and validly existing under the laws of Arizona, with respect to the Developer, or a municipal corporation within the State of Arizona, with respect to the Town, (ii) that it is a Town or municipal corporation duly qualified to do business in the State of Arizona and is in good standing under applicable state laws, and (iii) that the individual(s) executing this Agreement on behalf of the respective parties and authorized and empowered to bind the party on whose behalf each such individual is signing. 7.12 Severabiliiy. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement, which shalLotherwise remain in full force and effect. If any applicable law or court of competent jurisdiction prohibits or excuses the Town from undertaldrig 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 and take such action at its discretion. If, however, the Town fails to take the action required hereunder within the applicable Cure Period described in Paragraph 4.3 above, the Developer shall be entitled to terminate this Agreement. 7.13 Govemin2 La . 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. 7.14 Hold Harmless. In addition to any other remedies peimitted at law or equity and arising from the execution of this agreement, the Developer hereby agrees to 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 costs, actually and 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 an 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 Developers 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 attorneys' fees and cost incurred in the collection of same. 7.15 Recordation. The Agreement shall be recorded in its entirety in the Official Records of Pima County, Arizona, not later than ten (10) days after this Agreement is executed by the Town and the Developer. 7.16 No ftresentations by DevelMe . Nothing contained herein or in the Development Plan shall be deemed to obligate the Developer to complete any part or all of the development of the Property in accordance with the Development Plan or any other plan, and the Development Plan shall not be deemed a representation or warranty by the Developer of any Idnd whatsoever. 14 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. TOWN OF MARANA, an Arizona municipal corporation By: By: Attest: City Clerk Approved as to form: City Attorney CALIFORNIA PORTLAND CEMENT COMPANY By: Its: By: J A A A LA--f Its: 15 STATE OF ARIZONA ) )SS. COUNTY OF PIMA The foregoing instrument was acknowledged before me this - day of 19_, by the of the TOWN OF MARANA, an Arizona municipal corporation, on behalf of said corporation. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public STATE OF CALIFORNIA )SS. COUNTY OF LOS ANGELES On before me, Notary Public, personally appeared _ personally known to me -OR- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary 16 LIST OF EXHIBITS EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY EXHIBIT "B" DEVELOPMENT PLAN EXHIBIT "C" DISTRICT INFRASTRUCTURE IMPROVEMENT OUTLINE EXHIBIT "D" ZONING CLASSIFICATIONS 17 E=ITj A DESCRIPTICN OF PROPEFCY Plant #66 Orange Grove All that portion of the South half of Section 6, Township 13 South, Range 13 East, and the Northeast quarter, Section 7, Township 13 South, Range 13 East---of the Gila and Salt River Base and Meridian, Pima County, Arizona, lying Southwesterly of Interstate Highway 10 described as follows: BEGINNING at the Southwest corner of said Section 6; THENCE North 00 22' 45" West along the West Section line, a distance of 75.00 feet to a point; said point being on the North line of. Orange Grove Road, and being the TRUE POINT OF BEGINNING. THENCE North 880 58' 50" East, a distance of 2,154-15 feet to a point; THENCE along a curve to the right through a central angle of 16 0 59' 18", with a radius of 1,507.37 feet, a distance of 446.94 feet to a point; THENCE South 740 01' 52" East, a distance of 75.91 feet to -a point; THENCE along a curve to the left thought a central angle of 90 08 1 29" with. a radius -of 1,357.42 feet, a distance of 216.57 feet to a point; THENCE North 29' 58' 42" West, a distance of 250.24 feet to a point; THENCE South 88* 26' 03-" East, a distance of 250.00 feet to a point, said point being on the Southwesterly right-of -way line of Interstate Highway 10; THENCE North 290 55' 03" West, a distance of 366.37 feet to a point; THENCE North 33* 15, 20" West, a distance of 651.26 feet to a point; THENCE North 380 43, 24" West, a distance of 496.42 feet to a point; THENCE North 81 0 24' 23" West, a distance of 128.09 feet to a point; THENCE North 420 45' 02" West, a distance of 100.01 feet to a point; THENCE North 470 14' 56" East, a distance of 83.99 feet to a 9126 971 EXHIBIT A DESCRIPTION OF PROP= PAGE 2 Plant #66 Orange Grove point; THENCE North 420 45' 01" West, a distance of 750.09 feet to a point; THENCE South 470 15' 50" West, a distance of 84.01 feet to a point; THENCE North 420 45' 01" West, a,-distance of 125.02 feet to a point; THENCE North 90 30' 59" East, a distance of 106.21 feet to a point; THENCE North 420 45' 01" West, a distance of 297.32 feet to a point; CONTINUED ....... THENCE South 1 0 02' 59" East, a distance of 1,181.64 feet to a point, said point being the Northeast corner of said Lot 7; THENCE South 890 28' 32" West, along the North line of said Section 7, a distance of 1,211.92 feet to a point, said point being the Northwest corner of said Lot 7; THENCE South 00 221 45" East, along the West line of said Lot 7, a distance of 1,241.91 feet to a point, said point being the TRUE POINT OF BEGINNING. EXCEPT: BEGINNING at a point on the West line of the East half of the Southwest quarter of Section 6, Township 13 South, Range 13 East of the Gila and Salt River Base and Meridian, Pima County, Arizona, which is 147.11 feet, (record) (125.51 feet measured) Southerly of the Northwest corner of said East half of- the Southwest quarter and a point on the Southwesterly right-of-way line of Interstate Highway 10 as described in Docket 2273, Page 13; THENCE continuing along said Southwesterly right-of-way line of the following courses and distances: South 420 45' 011, East, a distance of 297.32 feet; South 91.0 30, 59" West, a distance of 106.21 feet; South 420 45 1 01" East, a distance of 125.02 feet; North 470 151 50" East, a distance of 84.01 feet; South 420 45' 01" East to a point on the North line of the new 91126 972 EXHIBIT A DESC=71"ION OF P-ROPE= Plant #66 PAGE 3 Orange Grove right-of-way for Canada Del Oro, as set forth in instruments recorded in Docket 5065, Pages 102 and 105; THENCE Westerly along a curve to the right thought a central angle of 170 161 14" with a radius of 1,689-86 feet, a distance of 509.37 feet to a point of tangency; THENCE South 690 47' 28" West, &.52 feet to a point on the West line of said East half of '?he Southwest quarter; THENCE Northerly along said West line of the gouthwest quarter to the POINT OF BEGINNING; and EXCEPT all that portion of the South half of Section 6, Township 13 South, Range 13 East, and the Northeast quarter of Section 7, Township 13 South, Range 13 East of the Gila and Salt River Base and Meridian, Pima County, Arizona, lying Southwesterly of Interstate Highway 10, described as follows: THAT part as herein described as being the new right-of-way for Canada Del Oro, as follows: BEGINNING at the Northwest corner of said Lot 7; THENCE South 00 22' 45" East, along the West line of Said Section 7, a distance of 467.73 feet to a point; THENCE North 690 47' 28" East a distance of 1,448.12 feet to a point; THENCE along a curve to the left through a central angle of 18'3 21' 42" with a radius of 2,129.86 feet a distance of 682.56 feet to a point, said point being on the Southwesterly right-of-way line of Interstate Highway 10; CONTINUED.... THENCE North 42* 451 01" West, a distance of 441.48 feet to a point on a curve, said point being on the Southwesterly right- of!-way line of Interstate Highway 10; THENCE Westerly along a curve to the right through a central angle of 170 16, 14- with a radius of 1,689.86 feet, a distance of 509.37 feet to a point of tangency; THENCE South 690 47, 28" West, a distance of 6.52 feet; THENCE South 10 02' 59" East, a distance of 432.16 feet to a point, said point being the Northeast corner of Lot 7; N. THENCE South 890 28, 32" West, along the North line of said Lot 7, a distance of 1,211.92 feet to a point, said point being the TRUE POINT OF BEGINNING of Parcel 1. AND 9126 973 E?HIBIT A Plant #66 DESC=J.ION OF PROPERTY Orange Grove PACM: 4 All. that portion of the East half of the Northwest quarter and the Northeast quarter of the Southwest quarter and the North half of the Southeast quarter and the Northeast quarter of Section 7, Township 13 South, Range 13 East of the Gila and Salt River Base and Meridian, Pima County, Arizona, lying Southwesterly of Interstate Highway 10 as deeded to the State of Arizona, recorded June 2, 19.64 in Docket 2273, Page 13 described as follows: BEGINNING at the Northwest corner of said Section 7; THENCE South 00 45' 04" East, a distance of 75 feet, to a point, said point being on the South line of Orange Grove Road; THENCE South '880 58' 50" East, a distance of 1,227.26 feet to a point, said point being the TRUE POINT OF BEGINNING; THENCE South 00 40, 46" East, a distance of 2,556.65 feet to a point, said point being North 890 21' 02" East, a distance of 1,223.95 feet from the West corner;,of said Section 7; THENCE South 00 35, 04" East, a distance of 641.01 feet to a point, said point being on the North line of Silverbell Road; THENCE along a curve to the left through a central angle of 2 0 IS' 36", with a radius of 1,402.40 feet, a distance of 56.54 feet to a point; THENCE South 520 06, 12" East, along the North line of Silverbell Road, a distance of 482.95 feet to a point; THENCE along a curve to the right through a central angle of 030 57' 15" with a radius of 5,729.16 feet, a distance of 395.39 feet to a point; THENCE South 480 081 57" East, a distance of 125.86 feet to a point; THENCE North 890 31' 18" East, a distance of 511.68 feet to a point, said point being North 00 26, 08" West, a distance of 1,321.49 feet from the South quarter corner of said Section 7; THENCE North 890 31, 09" East, a distance of 655.42 feet to a point, said point being the Southwest corner of that parcel of land described in Book 304 of Deeds, Page 197; THENCE,North 00 28, 51" West, along the West line of aforesaid parcel, a distance of 350.00 feet to a point; CONTINUED.... THENCE North 890 31' 09" East, along the North line of the aforesaid parcel, a distance of 2,002.53 feet to a point on the East line of Section 7; 974 F=T A DESCR=ION OF PFCP= Plant #66 PAGE 5 Orange Grove THENCE North 0' 04 - 02" West, a distance of 338.06 feet to a point; THENCE North 300 331 24" West, a distance of 15.55 feet to a point, said point being on the Southwesterly right-of -way line of Interstate Highway 10; THENCE continuing North 300 33r 24" West along the said Southwesterly right-of-way line-' of Interstate Highway 10, a distance of 572.10 feet to a point; THENCE South 590 26' 16" West, a distance of 75.00 feet to a point; THENCE North 30" 33' 26" West, a distance of 114.99 feet to a point; THENCE North 230 11' 42" East, a distance of 93.00 feet to a point; THENCE North 300 33' 24" West, a distance of 665.28 feet to a point; THENCE North 320 25' 24" West, a distance of 735.10 feet to a point; THENCE North 360 10' 39" West, a distance of 529.86 feet to the Southeast corner of that parcel of land described in Docket 4108, Page 246; THENCE South 880 58' 50" West along the South line of the aforesaid parcel, a distance of 997-61 feet to the Southwest corner thereof; THENCE North 380 24 - 27" West along the Westerly line of the aforesaid parcel, a distance of 444-25 feet to a point; THENCE North 29* 551 03" West along the Westerly line of the aforesaid parcel, a distance of 666.87 feet to a point on a curve, said point also being on the Southerly line of Orange Grove Road; THENCE along a curve to the left with a radius of 1,357.37 feet, through a central angle of 020 54' 06", a distance of 68.74 feet to a point of tangency; THENCE South 88 0 58' 50" West, a distance of 928.17 feet to a point, said point being the TRUE POINT OF BEGINNING. I AND All that part of Section 7, Township 13 South, Range 13 East of the Gila and Salt River Base and Meridian, Pima County, 9126 975 EXHIBIT A DESCP=-ION PROPERTY PAGE 6 Plant #66 Arizona, described as follows: Orange Grove BEGINNING at the point of intersection of the South line of that certain roadway described in Docket 3126, Page 192 and the Westerly Right-of-Way line of the Tucson Picacho Highway, said line being described as "Line 2" in Docket 2273, Page 13; THENCE Southeasterly along said rine, 1000 feet to a point; THENCE Westerly and parallel with the North line of said Section 7, a distance of - 1000 feet more or' less to a point distant 800 feet Southwesterly of and at right angles to the said "Line 2"; THENCE Northwesterly and parallel to the said "Line 2 1 to a point of intersection with the Southerly line of said Roadway described in Docket 3126, Page 192, said point being distant 800- feet Southwesterly of and at right angles to said "Line 2" ; THENCE Easterly along the South line of said-Roadway, to the TRUE POINT OF BEGINNING. AND All that portion of Lot 1, Section 7, Township 13 South, Range 13 East of the Gila and Salt River Base and Meridian, Pima County, Arizona, lying Northeasterly of the East bank of the Santa Cruz River as it existed on October 22, 1974. AND The North half of the Northeast quarter of the Northeast quarter of Section 12, Township 13 South, Range 12 East of the Gila and Salt River Base and Meridian, Pima County, Arizona. EXCEPT that portion lying Southwesterly of the Southwesterly boundary of Silverbell Road; and EXCEPT any portion thereof lying within Silverbell Road. AND Lot 1 and the Southwest quarter of the Northwest quarter in Section 7, Township 13 South, Range 13 East of the Gila and Salt River Base and Meridian, Pima County, Arizona EXCEPT that part lying Northeasterly of the East bank of the Santa Cruz River as it existed on October 22, 1974, Pima County, Arizona; and 9:1.26 93 6 EXHIBIT A DESC1=1 ION PROP= PAGE 7 Plant #66 Orange Grove FURTHER EXCEPT that part lying Southwesterly of the Northeasterly boundary line of Silverbell Road. AND That part of the South half of the Northeast quarter of the Northeast quarter of Section 12,?Township 13 South, Range 12 East of the Gila and Salt River Base and Meridian, Pima County, Arizona, lying Northeas"terly of the Northeasterly boundary line of Silverbell Road. AND That part of the Southeast quarter of the Northeast quarter of Section 12, Township 13 South, Range 12 East of the Gila and Salt River Base and Meridian, Pima County, Arizona, lying Northeasterly of the Northeasterly boundary line of Silverbell Road. 9126 .977 DEVELOPTNT PLAN Exhibit ,jV PERMUTED USES: Industrial Uses Including: Mining Activities Includiniz: Landfill Operations: Manufacture, distribution and sales of asphalt concrete or cement products, brick or similar products. Sand and gravel extraction for use in manufacturing or resale of raw materials. Recapture, storage and resale of surface water. Limited to non-organic construction debris and similar materials. EXHIBIT "C" Distrk A. The property is presently utilized, and has been utilized, for Mining Operations, and is therefore exempt from regulation pursuant to applicable state law and local ordinance, including but not limited to, A.R.S. 11-830 et seq; A.R.S. 27-301 et seq; and A.R.S. 48-3609 et seq. B. The developer will continue the present activities and intends to mine the mineral reserves to their maximum extent and intends also to utilize the property for Landfill Operations. C. Nothing contained herein shall be construed to limit or in any way control or regulate the present operations of Developer on the property. 20 r7xhiblt ZONING PLAN c R 13 SH c H cu- an CB- 2 -5 AW- GR-1 49 H \?CB- 3R- CI-2 a OR 6 R CB-1 SH CI-2 CB-1 SR SH h- ci I C1718 SH- A SH TH SR SR c SR SF MU SR SR GR- I S? SR G? I GR- I N -SR 3.6 J, OR I SR Zoning M When recorded, return to: John H. Renninger, Esq. California Portland Cement Company 2025 East Financial Way Glendora, CA 91741 DEVELOPMENT AGREEMENT )?AIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the,,7/-ry'- day of ) 1993, by and between the TOWW OF MARANA, an Arizona municipal co oratfon (the "Town"), and CALIFORNIA PORTLAND CEMENT COMPANY, a California corporation (the "Developer"). - RECITALS A. Developer is the owner of that real property located in Pima County, Arizona and adjacent to the Town, consisting of approximately 422.5 acres, legally described on Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"). B. The Developer and the Town desire that the Property be annexed into the corporate limits of the Town and be developed as an integral part of the Town, and in accordance with the existing General Plan for the Town. The annexation and development of the Property pursuant to this Agreement is acknowledged by the parties hereto to be consistent with the Town's General Plan and operate to the benefit of the Town, the Developer and the general public. C. Arizona Revised Statutes 9-500.05 authorizes the Town to enter into binding development agreements with landowners or other persons or entities having an interest in real property located in the Town. The Town and the Developer are entering into this Agreement pursuant to the provisions of A.R.S. 9-500.05 in order to facilitate development of the Property, to avoid waste of resources and escalation in the cost of housing and other development to the consumers thereof and to encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public, by providing for, among other things, conditions, terms, restrictions and requirements for the construction of public infrastructure as more particularly described herein, and the financing for such public infrastructure improvements; certainty and the approvals necessary for the development of the Property, including land uses, densities and intensities; and by providing assurances to the Developer that it may proceed with development of the Property in accordance with the Town's existing land use policies, rules and regulations. D. The Developer intends to develop the Property as a large scale, mixed use development for the uses and purposes set forth in the Development Plan for the Property, which has been prepared and filed with the Town prior to the date of this Agreement and which has been approved by the Town. A copy of the plan is attached hereto as Exhibit "B" and incorporated herein by this reference (hereinafter referred to as the "Development Plan"). The development of the Property requires substantial early and major capital expenditures and investments with respect to the construction of major infrastructure facilities. Because development of the Property is a project of such great magnitude, the Developer requires assurances from the Town that the Developer will be able to complete development of the Property pursuant to the Development Plan before it will expend substantial efforts and costs in such development. The Town, in order to encourage development of the Property consistent with the General Plan of the Town, has approved the proposed uses set forth in the Development Plan and adopted with zoning classifications, land uses, and densities and intensities consistent with the Development Plan, and agrees to coope ' rate in good faith with the Developer to expedite the approval and granting of permits, site plans, rezoning applications, plats and other development approvals for the Property in accordance with the Town's General Plan, the Development Plan and this Agreement. In reliance on the Town's execution of this Agreement and its agreement and representations that it will approve the development of the Property in accordance with the Development Plan (which reliance is acknowledged to be reasonable), the Developer intends to (i) expend substantial effort and incur substantial costs in proceeding to refine the Development Plan, which costs include, but are not limited to, costs for performing marketing, infrastructure and feasibility studies; (ii) develop land use planning, architectural, engineering and landscaping designs and plans, (iii) pursue, in accordance with this Agreement, the development of the Property. E. The Town acknowledges and agrees that the 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 the development of the Property to be consistent with the Development Plan, (ii) increasing tax and other revenues to the Town based upon, among other things, the construction of improvements on the Property and the use of the Property for business purposes, and (iii) creating jobs through development of the Property and through the operation of new businesses on the Property. The Town has determined that entering into this Agreement will further the goals and objectives of the Town's general plan and its overall land use planning policies by eliminating uncertainty and planning for the orderly development of the Property so that adequate long term plans regarding the necessary on-site and off-site infrastructure for the existing and future Town residents can be developed and implemented, and the maximum effective utilization of Town resources will be pursued at the least economic cost to its citizens. The benefits conferred by the Developer herein will facilitate the installation of certain desired public improvements within the Tow ' n, which will significantly promote the health, safety and general welfare of existing future Town residents. In exchange for these benefits to the Town and its residents, the Developer shall receive the assurances authorized by Arizona law that the Developer may proceed to develop the Property in accordance with the Town's existing land use ordinances, policies, procedures and regulations, at a rate of development within its discretion, subject to the terms and conditions of this Agreement. F. The Town's planning and zoning commission and council have found and determined that this Agreement: (i) is consistent with the Town's General Plan; (ii) is in the best interests of the health, safety and general welfare of the Town, its residents and the general public; (iii) is entered into pursuant to and constitutes a present exercise of the police power by the Town; and (iv) is entered into pursuant to and in compliance with the requirements of Arizona Revised Statutes 9-500.05. The assurances provided by the Town and Developer to each other herein have been provided pursuant to and as contemplated by Arizona statute, bargained and in consideration for the undertaking of the obligations of the parties as set forth herein, and are intended to be and have been relied upon by the parties to their detriment. 2 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 I. CONSTRUCTION AND FINANCING OF INFRASTRUCTURE IMPROVEMENTS. The parties acknowledge that the Property pursuant to the Development Plan will require the construction and installation of infrastructure improvements, such as streets, sewer, bank stabilization, water lines and other improvements as described in the Development Plan (collectively, the "Infrastructure Improvements"). The cost of construction of the Infrastructure Improvements may be paid for by the Developer, by a community facilities district formed to construct or acquire such improvements in accordance with the provisions hereinafter set forth, by such other means as set forth below or by such other means as may be agreed to by the parties. 1.1 Developer. The Developer shall have the right, but not the obligation, at any time after execution of this Agreement, to construct or cause to be constructed and installed any part or all of the Infrastructure Improvements necessary for implementation and. acquisition of effluent storage, distribution facilities and other improvements necessary to fully develop the Property in conformance with the outline of such improvements attached hereto as Exhibit "C" (the "District Infrastructure Improvement Outline). All such construction, if performed by Developer, shall be performed in a good and workmanlike manner and in compliance with all applicable laws, permit requirements, standards, codes, rules or regulations of the Town and of the State of Arizona, or the United States, as applicable, and in accordance with a map of dedication therefor, which has been filed with and approved by the appropriate governmental authorities. The Developer, its agents and employees, shall have the right to use any existing Town easeffi ents or rights-of-way to the extent reasonably necessary to facilitate such construction, and the Town shall duly execute and record all documents or instruments which may be necessary in accordance therewith. In addition, in the event any additional easements or rights-of-way are necessary in order to construct or install any part or all of the Infrastructure Improvements, and such easements or rights-of-way cannot be acquired by the Developer at a cost which Developer deems reasonable, the Town shall initiate and diligently pursue condemnation of any real property necessary for such easements or rights-of-way, as determined to be necessary by the Developer and the Town. The Developer shall pay all costs incurred by the Town in connection with the condemnation of such real property, including the full amount of any condemnation award assessed against the Town and in favor of the person or entity whose property is condemned. Upon completion of any acquisition or condemnation under this paragraph, title to the land shall vest in the Town, and the Town shall provide such easements and rights-of-way (and execute and record all necessary documents and instruments) which may be necessary in connection with the construction of the Infrastructure Improvements by the Developer. 1.2 Communitv Facilities District. The Town hereby agrees to cooperate with the Developer in forming a Community Facilities District (the "District") pursuant to A.R.S. 48.701 et ?Leq (the "CFD Act") for the purpose of funding the construction or acquisition of those Infrastructure Improvements (which may include Infrastructure Improvements to be acquired from the Developer). Upon receipt of a petition filed in connection with the formation of the District signed by 100% of the owners of the 3 land within the proposed District, the Town shall approve an appropriate resolution for the formation of the District. In the event the Developer does not obtain the signatures of 100% of the owners of the land within the proposed District but obtains at least 25 % of the required signatures, the Town and the Developer shall work together to obtain the number of signatures required to form the District. Upon formation of the District, the District shall declare its intent and commit to issue its bonds, in one or more series (hereinafter referred to collectively as the "Bonds"), pursuant to the CFD Act, in amounts necessary and sufficient for the construction or acquisition of the District Infrastructure Improvements and all expenses of which may, if allowed by law, be paid out of the proceeds received from the sale of the Bonds. Upon the submission by the Developer to the Town of a valid and sufficient petition for the formation of any other community facilities district in Addition to the District, the Town agrees to exercise good faith and use best efforts to expedite the formation of such district pursuant to the provisions of the CFD Act, all provisions of this Paragraph 1.2 relating to the operation of the District shall apply thereto. 1.2.1 Board of Directors of the District. The initial Board of Directors of the District shall be those individuals appointed to such positions as agreed to by the Town and the Developer and identified in the District Resolution. In the event of a vacancy occurring on the expiration of the term of an appointed board member of the District upon the death, resignation or inability of a board member to discharge the duties of such office, the District shall notify the Developer of such vacancy and give the Developer a reasonable opportunity to recommend candidates for appointment to fill the vacancy and to advise and consult with the Town in connection therewith. After considering the general qualifications of any candidates recommended by the Developer, the Town shall promptly appoint a new or interim District board member as the case may be. 1.2.2 Operation of District. The following provisions shall apply to the operation of the District and any other community facilities district formed pursuant to Paragraph 1.2 of this Agreement: (a) Ratification of Agreement. Upon formation of the District pursuant to this Agreement, the District shall, in accordance with A.R.S. 9-500.05, be deemed to be a party to this Agreement, and at the first meeting of the Board of Directors of the District, the Board of Directors shall ratify this Agreement. (b) Feasibilily Rgports. Prior to the construction or acquisition of any District Infrastructure Improvements by the District, the District's Board of Directors shall, in accordance with the CFD Act, approve a feasibility report, which report shall be prepared by the Developer or any independent qualified person or firm selected by Developer on behalf of the District. The cost of such feasibility report shall be bome by the Developer, but shall, so long as bonds are sold by the District, be reimbursed by the District in accordance with the applicable feasibility report. Each such feasibility report shall be consistent with the District's Infrastructure Plan and include the following: (i) a detailed description and plans for the infrastructure to be constructed or acquired; (ii) a detailed estimation of construction or acquisition costs and operation and maintenance costs, if any; 4 (iii) a benefits analysis; (iv) a proposed allocation of assessment or taxes and a method of financing the acquisition or construction of such infrastructure, including any rights-of-way or improvement sites necessary therefor, and indicating specific portions of the infrastructure to be constructed or acquired as construction is completed (a "Completed Segment"); (v) an analysis of the financial feasibility of the financing method designated, specifying the type of bonds and proposed repayment method; and (vi) a designation of the public or private entity to which such improvements will be dedicated or conveyed for continued operation and maintenance, and the timing of such dedication or conveyance. Unless otherwise agreed by the Developer, the District shall not accept any feasibility report that has not been prepared by the Developer or by a qualified independent person or firm at the request of the Developer. As soon as reasonably possible after receiving the feasibility report, the Districts Board of Directors shall consider and eith ' er approve the feasibility report as provided by the CFD Act or, acting in good faith, reject the feasibility report based upon an independent financial analysis or engineering study stating in reasonable detail that the proposed financing or the engineering design of the infrastructure improvements to be constructed or acquired is not feasible. If the District's Board of Directors approves the feasibility report, the District shall either acquire the infrastructure described therein in Completed Segments together with the sites and rights-of-way therefor from the Dev eloper pursuant to subparagraph (c) below or cause the infrastructure therein to be constructed by the District pursuant to subparagraph (d) below. (c) Acquisition of District Infrastructure Improvements by the District. The Developer may at any time construct or cause to be constructed any part or all of the District Infrastructure Improvements consistent with the District Infrastructure Plan. All such construction by the Developer shall be performed in a good and workmanlike manner and in compliance with all applicable permit requirements, standards, codes, rules and regulations of any applicable governmental entity or agency thereof. Upon the District's approval of the feasibility report therefor, and based upon a satisfactory inspection by the District of a Completed Segment which has been constructed by the Developer, the District shall pay the Developer for the construction of such improvements in cash, and in an amount equal to the actual costs and expenses incurred in constructing said infrastructure and for acquiring the land upon which it is located and any appurtenant rights-of-way, administrative costs and the "finance cost" associated therewith, up to the maximum amount of the bond proceeds allocated for such purpose and the applicable feasibility report. The term "finance cost" as used in this Paragraph shall be deemed to mean (i) the interest, fees, points and all other amounts charged in connection with any loan or loans to the Developer for the purpose of acquiring the land and the construction 5 of the District Infrastructure Improvements thereon, or (iii) interest at the rate of 1 % over the prime rate of First Interstate Bank of Arizona, N.A., as that "prime rate" may be announced from time to time, for a portion of the land acquired or infrastructure constructed without third-party financing on the amount of the costs and expenses from the date incurred to the date reimbursed by the District. Nothing in this Paragraph shall be construed to prohibit or otherwise limit the ability of the Developer to elect to dedicate property to the District without consideration by instrument in form and content reasonably acceptable to the District. Upon completion of the construction of a Completed Segment and receipt of all payments provided in the District's resolution accepting the construction, the Developer will convey the Completed Segment, together with the underlying rights- of-way and sites described in the applicable resolution, to the District, free and clear of all liens and encumbrances and the District shall promptly accept and approve the conveyance; provided that the construction of the improvements and cost of the Completed Segment are consistent with the approved feasibility report therefor. (d) Construction of District Infrastructure Improvements by District.. If the feasibility report approved by the District indicates that the District will have responsibility for the construction of all or any part of the Infrastructure Improvements described in such feasibility report, the District will publicly bid such construction work; provided, however, that in accordance with A.R.S. 480709(H) the Developer shall have the right to match the lowest bid for the construction of such Infrastructure Improvements, so long as the Developer owns at least 75% of the total land area within the real property included within the District at the time of the bid. The District shall thereafter enter into a construction agreement with the lowest bidder or the Developer, if the Developer is the lowest bidder or matches the lowest bid, for the construction of the infrastructure improvements described in the feasibility report. In the event the District determines that a construction manager is necessary to oversee the construction of such improvements, such construction manager shall be mutually-acceptable to the District and the Developer. After the construction agreement is executed, the District shall, as described in the approved feasibility report, proceed to acquire any rights-of-way or improvement sites not previously dedicated,and require the construction of the District Infrastructure Improvements described in the construction agreement to commence as soon as reasonably possible thereafter. The District shall require that all such construction or other work to be performed pursuant hereto be performed in conformity with the District Infrastructure Plan as described in the applicable feasibility report, and in a good and workmanlike manner in compliance with all applicable standards, codes, rules or regulations of any applicable governmental entity or agency thereof. (e) Operation and Maintenance. Upon the acquisition or construction by the district of Infrastructure Improvements in accordance with the applicable feasibility report therefor, the District shall own, operate and maintain in good order, condition and repair at all times, such District Infrastructure Improvements and related facilities until an agreement is entered into by the District with a Responsible Party (as described in Paragraph 1.4 below) to transfer the ownership, operation and 6 maintenance of the District Infrastructure Improvements, as described in the District Infrastructure Plan, and the applicable feasibility report therefor. The District shall contract to obtain labor, materials and equipment for the operation and maintenance of such improvements, and such contracts shall be awarded to a company or companies acceptable to the District at reasonable rates. Any such service contracts shall require that such work and service be performed in a good and workmanlike manner and in compliance with all federal, state and local statutes, laws, regulations, codes and ordinances. The District shall pay, either from applicable revenues or by levy of additional taxes as provided by the CFD Act, all costs, expenses and fees incurred in connection with such operation and maintenance as provided in an annual budget therefor, which shall include anticipated rates, charges and fees of the District, and which shall be prepared for each fiscal year during the term of the Agreement. 1.3 Other Financing Methods. Upon the Developer's request the Town agrees to exercise good faith and use best efforts to promptly form one or more improvement districts, municipal property corporations, or industrial development authorities or to implement other sources of - development financing for the purpose of financing the cost of construction and maintenance of any or all of the Infrastructure Improvements, including without limitation, sewer, drainage, bridge, roadway, flood control and recreational improvements, and whether or not the construction of such improvements is the responsibility of the Developer or a community facilities district formed pursuant hereto. 1.4 Dedication of Infrastructure Improvements. Ownership of all completed portions of the Infrastructure Improvements shall be dedicated by the -person or entity responsible for payment of construction of such improvements (the "Constructing Party") to the Town or other appropriate public or private entity as set forth in the Infrastructure Plan (the "Responsible Party"). By instrument in form and content acceptable to the. Constructing Party and the Responsible Party within one (1) year after completion of any portion of the Infrastructure Improvements in accordance with the Infrastructure Plan, or within such other time period as may be agreed to by the Constructing Party and the Responsible Party, and subject to acceptance by the Responsible Party as hereinafter set forth. So long as such Infrastructure Improvements are constructed in accordance with plans and specifications approved by the Responsible Party, as verified by inspection of the completed improvements by the engineer or other designated representative of the Responsible Party, the Responsible Party shall immediately thereafter accept such dedication of Infrastructure Improvements, and shall, at its own cost and expense, maintain, repair and operate such Infrastructure Improvements in accordance with its customary standards. Except as provided herein, ownership of all Infrastructure Improvements constructed by the Developer shall be maintained and operated by the Developer so long as the Developer owns the Infrastructure Improvements and prior to the dedication of such improvements to the Responsible Party. I. ANNEXATION AND ZONING. 2.1 Annexation Petition. The Town, having held public meeting thereon, has, concurrently with its approval of the Agreement, duly considered and approved the annexation of the Property. As soon as reasonably possible after execution of this Agreement by the Town and the Developer, the Developer shall deliver to the Town an appropriate petition for annexation duly executed by all necessary property owners (the "Annexation Petition"). Upon receipt of the Annexation Petition, the Town shall undertake to perform all necessary acts and procedures necessary to annex the property into 7 the corporate boundaries of the Town, including without limitation, approval of an annexation ordinance at the next available meeting of the Town Council. 2.2 Applicable Zoning. Having held appropriate public hearings thereon, and having duly considered such matter, concurrently with the Town's approval of an appropriate ordinance annexing the Property to the Town, the Town agrees to adopt the zoning classifications for the Property which are identical or substantially similar to the existing zoning classifications in the Town copies of which are attached hereto as Exhibit "D" (hereinafter referred to as the "Zoning"). All Zoning with respect to the Property shall be deemed to be "vested" at such time as the Property is annexed to the Town in accordance with Paragraph 2.1 above and the approval by the Town of the Development Plan for the Property. The Town agrees that no application fees, filing fees or processing costs shall be charged by the Town to the Developer in connection with the adoption of the Zoning with respect to and upon annexation of the Property other than the annexation fee, and the specific plan review fee. III. DEVELOPMENT OF THE PROPERTY 3.1 Development Plan. Concurrently with the approval and execution of this Agreement and the annexation of the Property, and upon the Town's review and due consideration, the Town hereby approves the Development Plan for the development of the Property, a copy of which is attached hereto as Exhibit "B". Upon such approval, the Development Plan shall be? incorporated into and become part of the Town's General Plan for all purposes. The Property shall be developed by Developer in accordance with the Development Plan, as may be amended from time to time. Upon the approval of the Development Plan by the Town, the Developer shall be authorized to implement the uses, densities and intensities set forth in the Development Plan, and will be accorded all approvals necessary to the Town's review and approvals of rezoning applications, site plans and specifications. The Town and the Developer acknowledge that amendments to the Development Plan may be necessary from time to time in order to reflect changes in market condition, development financing and/or to meet the new requirements of one or more of the potential users or developer of any part of the Property. The parties shall cooperate in good faith to agree upon, and use reasonable best efforts to process, any amendments to the Development Plan. The Town, having exercised its discretion in approving the Development Plan, agrees to approve for issue such permits, plans, specifications, plats and/or rezoning of or for the Property as may be requested by the Developer in order to implement, and which are reasonably consistent with, the Development Plan. The Town's failure to timely approve any permits, plans, specifications, plats, rezoning, or other matters necessary to permit the Developer or any user or builder within the Property to implement the Development Plan shall be a breach of this Agreement. If and when the parties find that changes or adjustments are necessary or appropriate to be made to the Development Plan, they shall, unless otherwise required by law, effectuate such changes or adjustments through administrative amendments approved by the Town's Director of Planning and Zoning, which, after execution, shall be attached hereto as an addendum and become a part hereof, and may be fur-ther changed and amended from time to time as necessary, with the approval of the Town and the Developer. Unless otherwise required by law, no such administrative amendments shall require prior notice or hearing. Notwithstanding the foregoing, the following matters shall not be considered administrative changes or amendments, but shall be considered substantive amendments which shall be reviewed by the Planning and Zoning Commission and approved by the Town Council: (i) Alteration of the permitted uses of the Property; 8 (ii) Increase in the density or number of dwelling units; (iii) Increase in the maximum height and size of permitted buildings; and, (iv) Deletion of a requirement for the reservation or dedication of land for public purposes, except for minor boundary adjustments approved by the Planning and Zoning Director. During the term of this Agreement, the Town shall not initiate any changes or modifications to the Development Plan except at the request of the Developer' or the then-owner of any portion of the Property for which such zoning change is sought. 3.2 Rep-ulation of Develgpmen . By entering into this Agreement and relying thereon, the Developer is obtaining a vested right to proceed with development of the Property in accordance with the Development Plan, but su?ject to any remaining discretionary approvals required in order to complete development of the Property as contemplated by the Development Plan (which discretion shall be exercised reasonably and in accordance with the terms of this Agreement). The rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings in the design, improvement and construction standard and specifications applicable to development of the Property are those rules, regulations and official policies in force as of the date of this Agreement, and the Town shall not impose or enact any additional conditions, exactions, dedications, development fees, rules or regulations applicable to or governing the development of the Property, except only as set forth in exhibit "C" and as follows: (i) future land use rules, regulations and official policies of the Town which are consistent with and not contrary to the existing land.use regulations applicable to and governing the development of the Property, or contrary land use regulations 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 as necessary to comply with the future state and federal laws and regulations, provided that in the event any such state or federal laws prevent or preclude compliance with this Agreement, such affected provisions of this Agreement 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 in connection with bona fide public health and safety purposes and not arbitrarily imposed; and (iv) future imposition of taxes of filing or review fees, or modifications thereto, so long as such taxes or fees are imposed or charged by the Town to all persons and entities. 9 3.3 Ko-ratorium. The parties hereby acknowledge and agree that the Development Plan contemplates and provides for the phasing of the development of the Property and no moratorium or future 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, building permits, occupancy permits or other entitlements to use issued or granted by the Town, except as otherwise provided in this Agreement, and except for any ordinance, resolution or regulation enacted by the Town after the date of this Agreement as may be necessary to (i) comply with any state or federal law or regulation prevents or precludes compliance with this Agreement, such affected provisions of this Agreement shall be modified as may be necessary in order to comply with such state or federal law or regulation, or (ii) alleviate or otherwise contain a legitimate, bona fide threat to the health or safety of the public, in which event any ordinance, rule or regulation to be imposed in an effort to contain or alleviate such threat may be imposed only after public hearing and comment and shall not, in any event be imposed arbitrarily. In the event of any such moratorium, future ordinance, resolution or rule and regulation, unless taken by the Town to comply with state or federal laws or to alleviate a legitimate, bona fi& threat to public health or safety, the Developer shall continue to be entitled to apply for and receive approvals for the implementation of the Development Plan in accordance with the rules, regulations and official policies applicable to and governing the development of the Property existing and in force of the date of this Agreement. IV. COOPERATION AND ALTERNATIVE DISPUTE RESOLUTION 4. l' Appointment of Rgpresentatives. To further the commitment of the parties to cooperate ,in the implementation of 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 and the builders and users of the Property. The initial representative for the Town shall be the Town Manager and the initial representative for the Developer shall be the project manager for the Property. The above representatives shall meet as necessary at the request of either party to discuss and review the performance of the parties to this Agreement and the development of the Property. The representatives may recommend amendments to this Agreement, which may be agreed upon by the parties pursuant to Paragraph 7.9 below. 4.2 Cooperative Dispute Resolution: Expedited Town Decisions. The implementation of the Development Plan shall be in accordance with the development and review process of the Town. 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 between the parties on any issues affecting the development of the Property, the Town and the Developer shall cooperate in good faith to resolve the dispute between themselves, and such disputes shall be discussed and attempted to be resolved through their representatives pursuant to Paragraph 4. 1 above. 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's representative shall give the Developer a final decision within seven (7) days after a request for a decision is made to the Town Council, the Town representative shall be responsible for scheduling a Town Council hearing on the next available Town Council agenda, but in no event later than fourteen (14) days after the Developer requests such hearing. The Town and Developer agree to continue to use their best efforts to resolve such issue pending the Town Council hearing. 10 judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. V. NOTICE AND FILTNGS 5.1 Manner of Serving. All notices, filings, consents, approvals and other communication 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 certified United States mail, postage prepaid, return receipt requested, to: The Town, the Town Council, and the Town Clerk: Town of Marana 12351 North Lon Adams Road Marana, Arizona 85653 The Developer: California Portland Cement Company 2025 East Financial Way Glendora, California 91741 Attention: John H. Renninger, Esq. or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner. 5.2 Mailing Effective. Notices, filing, consents, approvals and communication given by mail shall be deemed delivered twenty-four (24) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above. VI. PERIODIC REVIEW The Town shall review this Agreement at least once every twelve (12) months from and after the date hereof. During each such periodic review, the Town and the Developer shall demonstrate their good faith compliance with the terms and conditions of this Agreement. Both parties shall furnish such evidence of good faith compliance as may be reasonably requested by the other party. The Town's failure to review compliance with this Agreement at least annually shall not, however, constitute or be asserted by either party as a breach of this Agreement by the other party. VIL GENERAL 7.1 Waive . No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the Town or the Developer of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 7.2 CountMarts. 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 11 signatures of all parties may be physically attached to a single document. 7.3 Heading-S. The descriptive heading 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. 7.4 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 hereoL 7.5 Time of Essence: Further Acts. Time is of the essence in this Agreement. 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 as expeditiously as possible. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any and all requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by the Developer and its successors. 7.6 Future Effect. (a) Successors and Assigns. 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 7.6(c) below, with respect to any Public Lot as defined in Paragraph 7.6(c). 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 obligations and liabilities hereunder shall terminate effective upon the assumption of such obligations and liabilities by then Developer's assignee, provided that the Town has approved the assignment to such assignee, which approval shall not reasonably be withheld. (b) No Restrictions on Building Permits or Necessaa Approvals. The Town agrees that, for a period of ten (10) years from the effective date of this Agreement, it shall take no action that would result in restricting the availability of building permits or other applicable permits or approvals necessary to allow construction of the types of improvements and uses that are permitted under the subject property's zoning classifications. Any such moratorium restriction or limitation on the availability of building permits or other applicable permits or approvals during the ten (10) year period set forth above shall be of no effect against the Property, the owner(s), mortgage(s), or lessee(s) thereof or any other person or entity having an interest therein. (c) Termination UWn Sale to Public. The Town and the Developer hereby acknowledge and agree that this Agreement is not intended to and shall 12 not create conditions or exceptions to title or covenants running with any portions by the Developer or any successor of the Developer who has accepted an assignment of the Developer's rights and obligations pursuant to Paragraph 7.6(a) above. Therefore, in order to alleviate any concern as to the effect of this Agreement on the status of title to any portion of the Property, notwithstanding anything contained herein to the contrary, and so long as not prohibited by law, 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 one year) or sold to the end 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. 13 7.7 No Partnership: Third Parties: It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between the Developer and the Town. No term or provision of this Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. 7.8 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. 7.9 Amendmen . 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 in the Official Records of Pima County, Arizona. 7.10 Names and Plans. The Developer shall be the sole owner of all names, titles, plans, drawing, specifications, ideas, 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 extent required for the Developer to construct, operate or maintain improvements relating to the Property- 7.11 Good Standing: Authori . Each of the Parties represents and warrants to the other (i) that it is duly formed and validly existing under the laws of Arizona, with respect to the Developer, or a municipal corporation within the State of Arizona, with respect to the Town; (ii) that it is a Town or municipal corporation duly qualified to do business in the State of Arizona and is in good standing under applicable state laws, and (iii) that the individual(s) executing this Agreement on behalf of the respective parties and authorized and empowered to bind the party on whose behalf each such individual is signing. 7.12 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 full force and effect, but the provisions requiring such action shall be deemed to permit the Town and take such action at its discretion. If, however, the Town fails to take the action required hereunder within the applicable Cure Period described in Paragraph 4.3 above, the Developer shall be entitled to terminate this Agreement. 7.13 Governiniz 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. §38-511. 14 7.14 Hold Harmless. In addition to any other remedies permitted at law or equity and arising from the execution of this agreement, the Developer hereby agrees to 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 costs, actually and 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 an 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 attorneys' fees and cost incurred in the collection of same. 7.15 Recordation. The Agreement shall be recorded in its entirety in the Official Records of Pima County, Arizona, not later that ten (10) days after this Agreement is executed by the Town and the Developer. 7.16 No Roresentations by Develoer. Nothing contained herein or in the Development Plan shall be deemed to obligate the Developer to complete any part or all of the development of the Property in accordance with the Development Plan or any other plan, and the Development Plan shall not be deemed a representation or warranty by the Developer of any kind whatsoever. 15 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. TOVV7N OF M[ARANA, an Arizona municipal corporation By: Its: Mayor CALIFORNIA PORTLAND CEMENT COMPANY By: Its: By: Its: 16 STATE OF ARIZONA )SS. COUNTY OF PIMA The foregoing instrument was acknowledged before me this 199 . bv Marana, an Arizona municipal corporation, on behalf of said corporation. day of - of the Town of IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public STATE OF ARIZONA )SS. COUNTY OF LOS ANGELES On before me, Notary Public, personally appeared personally known to me -OR- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her /their authorized capacity(ies), and that by his/her/their/ signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary 17