HomeMy WebLinkAboutResolution 95-004 amended and restated development agreement and IGA relating to red hawk canyong communities facilities districts 1 and 2
, \
RESOLUTION NO. 95-04
A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF THE TOWN OF
MARANA, ARIZONA, AUTHORIZING AN AMENDED AND RESTATED DEVELOP-
MENT AGREEMENT AND INTERGOVERNMENTAL AGREEMENT.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, as follows:
1. Fmdiru!s of the Municioalitv. The Mayor and Council hereby make the
following findings:
(a) Prior to the adoption hereof, there was presented to us, the Mayor
and Council of the Town of Marana, Arizona (hereinafter referred to as the "Municipality"),
petitions for formation of two community facilities districts and adoption of resolutions declaring
formation of the Red Hawk Canyon Community Facilities District No. 1 (Town of Marana,
Arizona) and the Red Hawk Canyon Community Facilities District No. 2 (Town of Marana,
Arizona), signed by the owner of all land within the proposed districts (the "Petitioner"),
pursuant to Title 48, Chapter 4, Article 6, Arizona Revised Statutes, as amended (hereinafter
referred to as the "Act") and the Municipality is considering formation of such districts as Red
Hawk Canyon Community Facilities District No. I ("District No.1") and Red Hawk Canyon
Community Facilities District No.2 ("District No.2"), respectively.
(b) Pursuant to the Act and Section 9-500.05, Arizona Revised Statutes,
as amended, the Municipality, District No. I, District No.2, the Petitioner and other interested
parties may enter into a "development agreement" to specify, among other things, conditions,
terms, restrictions and requirements for "public infrastructure" (as such term is defmed in the
Act) and the fmancing of public infrastructure. The Municipality, the Petitioner and other
interested parties have determined to specify some of such matters in such an agreement,
particularly matters relating to the acquisition, construction and operation and maintenance of
certain public infrastructure by District No.1, District No. 2 or other parties to the development
agreement and the acceptance thereof by the Municipality, all pursuant to the Act.
(c) Pursuant to the Act and Title 11, Chapter 7, Article 3, Arizona
Revised Statutes, as amended, District No. I, District No.2, the Municipality and other
community facilities districts may enter into an "intergovernmental agreement" with one another
for joint or cooperative action for services and to jointly exercise any powers common to them
and for the purposes of the planning, design, inspection, ownership, control, maintenance,
operation or repair of public infrastructure.
(d) There has been presented to us in connection with the purposes
described in paragraphs 1(b) and l(c), an Amended and Restated Development Agreement and
Intergovernmental Agreement (hereinafter referred to as the "Development Agreement"), by and
among WCA Communities, Inc., an Arizona corporation ("WCA"), U.S. Home Corporation,
a Delaware corporation ("USH"), the Municipality and, after their formation, District No. 1 and
District No.2.
(e) The Municipality has taken, or concurrently herewith expects to
take, the actions necessary to form District No. 1 and District No.2.
2. Aooroval of Develooment Ae:reernent. The Development Agreement,
attached hereto as Exhibit A, is approved and the Mayor and Clerk are authorized and directed
to execute and deliver the Development Agreement on behalf of the Municipality as provided
herein . The Mayor and Clerk shall execute and deliver the Development Agreement only
following execution of the Development Agreement by USH and WCA and presentation to the
Town of evidence acceptable to the Mayor of the authority of USH and WCA to execute and
deliver the Development Agreement. The Mayor's signature on the Development Agreement
shall be conclusive evidence of the Mayor's acceptance of the evidence of authority of, and the
execution by, USH and WCA.
Passed by the Council of the Town of Marana, Arizona, this 17th day of
January, 1995.
(]),u,~ /11u- ~
Mayor, Town of Marana, Arizona
AP
~~~
-2-
I"" IPlrJ(.1 1"I')))h~U.)IJ[].. h'l-I.IPlh'r'fT'
h'F())f~DFJ) H\{:: F>'')F'
OFF'I.ITY r;:FC::CJF:DFF'
..'003 h'D 1 1:::
TT{"tfl steve Betts
':)nLI...AGI"IFf~ \~ I<FNNFDY
1';':'11--1 FLF:
,.?c,\OO r~ CFNTh:rtl... ()~)F::
I>HOEN IX nz H'.:.:.;O()i.,.
l~th rioor
2600 North Central Avenue
Phoenix, Arizona 85004-3020
:> Cf 1:- j.::" r . r:") (:1 .
I:' n C~ [: :: I ';0:'
!") ("I .. lPlF" I' (I Cd: ::; ::
\.:; F I) 1.1 [" i'~ (": [ <? I::; () 1 .: /, I:; 'I
() 1 .,./ :~::: ()/., <) I.:.:;
(,nC) I. (, ~ 0:' ::
!")n II...
nMUUNT F'r:) 1D -+ 6.:"
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
AND INTERGOVERNMENTAL AGREEMENT
(RED HAWK CANYON)
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT AND
INTERGOVERNMENTAL AGREEMENT (RED HAWK CANYON) (this "Agreement") is
made as of this ()..,-7 day of :Y~"'v fl~' ,1995, by and between
the TOWN OF MARANA, an Arizona municl al corporatlon (the "Town"),
WCA COMMUNITIES, INC., an Arizona corporation, formerly known as
TORTOLITA MOUNTAIN PROPERTIES, INC. ("WCA") , and U. S. HOME
CORPORATION, a Delaware corporation ("USH").
RECITALS
A. Prior to filing articles of amendment to effect a change
in name, WCA was known as Tortolita Mountain Properties, Inc., an
Arizona corporation ("TMP"). WCA is the successor to Tortolita
Mountain Properties Limited Partnership, an Arizona limited
partnership ("TMPLP") as owner of a portion of that certain real
property legally described on Exhibit "A" attached hereto (the
"District 1 Property") and all of that certain real property
legally described on Exhibit "B" attached hereto (the "District 2
Property") (the District 1 Property and the District 2 Property are
sometimes collectively referred to herein as "Red Hawk Canyon").
Red Hawk Canyon consists of approximately 3220.68 acres. The
portion of the District 1 Property not owned by WCA consists of
approximately 10 acres located within the southeast quarter of the
southeast quarter of the southeast quarter of Section 26, Township
11 South, Range 12 East, Gila and Salt River Base and Meridian,
Pima County, Arizona (the "District 1 Outparcellf), and is owned by
USH.
B. TMPLP, by and through TMPLP's predecessor in title,
Pioneer Trust Company of Arizona, as Trustee under Trust Nos.
11,900 and 11,901, and the Town entered into an Agreement dated
August 2, 1988 (the "First Pre-Annexation Agreement") providing
for, among other things, terms and conditions under which a portion
of Red Hawk Canyon consisting of approximately 1,868 acres was to
Page 1 of 42
/,(
( (
) .
9969
1923
be annexed to the Town. Such portion of Red 'Hawk Canyon was
annexed to the Town by Ordinance No. 88.15 dated August 2, 1988.
C. Pursuant to Section 5 of the First Pre-Annexation
Agreement and further pursuant to Arizona Revised Statutes,
Section 9-500.05 (the "Development Agreement Act"), the Town and
TMPLP entered into a Development Agreement dated June 6, 1989 and
recorded on June 14, 1989 in Docket 8558, page 1450, records of
Pima County, Arizona (the "First Development Agreement") in order,
among other things, to facilitate development of a portion of Red
Hawk Canyon by providing for the financing and acquisi tion or
construction of water, sewer, road, drainage and other
infrastructure through the creation of at least one community
facilities district (individually, a "District," and collectively,
the "Districts") pursuant to Arizona Revised Statutes, Section 48-
701 ~ ~ (the "CFD Act") .
D. The general infrastructure plan for the development of a
portion of Red Hawk Canyon as described in the First Development
Agreement incorporates, without limitation, (i) sewer improvements
that are the subject of that Agreement for Construction of an Off-
Si te Public Sani tary Sewerage System and Provision of Sani tary
Sewerage System Service entered into on September 27, 1988 by and
between TMPLP and Pima County, Arizona (the "County") as amended
January 24, 1989 (the "Sewer Agreement"), (ii) water improvements
that are the subject of that Water Service Agreement adopted
September 19, 1988 (the "Water Agreement") by and between TMPLP and
the City of Tucson (the "City"), and (iii) roadway improvements,
incl uding those outside Red Hawk Canyon ("County Roadways"), to
provide necessary access and roadways to be constructed within Red
Hawk Canyon. The improvements that are the subj ect of the Sewer
Agreement and the Water Agreement are hereinafter collectively
referred to as the "Water/Sewer Improvements."
E. Pursuant to Section 6 of the First Pre-Annexation
Agreement, the Town and TMPLP cooperated in the preparation of a
Tortolita Mountain Properties Specific Plan, Marana, Arizona which
plan was filed with the Town by TMPLP and dated May 22, 1989 (the
"Specific Plan"), establishing, among other things, the type of
land uses, location, density and intensity of such land uses, and
community character of a portion of Red Hawk Canyon, and providing
for, among other things, the development of a variety of housing,
recreation/open space, industrial, commercial/business
opportunities and a destination resort motel. The Specific Plan
was approved by the Town on May 31, 1989 by Ordinance No. 89.22.
F. Pursuant to Section 6 of the First Pre-Annexation
Agreement and further pursuant to the Development Agreement Act,
t he Town and TMPLP entered into a Second Development Agreement
Page 2 of 42
9969
\924
dated October 17, 1989 and recorded on October 25, 1989 in Docket
8650, page 2178, records of Pima County, Arizona (the "Second
Development Agreement") in order, among other things, to implement
the Specific Plan. The First Development Agreement and the Second
Development Agreement, as amended and restated herein, are
hereinafter collectively referred to as the "Development
Agreements."
G. TMPLP and the Town entered into a Pre-Annexation
Agreement dated April 17, 1990, and recorded in Docket 8776, page
2248, records of Pima County, Arizona to provide for, among other
things, terms and conditions under which a portion of the District
2 Property consisting of approximately 1360 acres located wi thin
the northeastern portion of Red Hawk Canyon was to be annexed to
the Town (the "Second Pre-Annexation Agreement"). Such portion of
the District 2 Property was annexed to the Town and was made part
of the Specific Plan by Ordinance No. 90.15 dated April 17, 1990.
H. TMPLP and the Town entered into a Pre-Annexation
Agreement dated January 7, 1992 and recorded in Docket 9211, page
369, records of Pima County, Arizona to provide for, among other
things, terms and conditions under which that certain real property
described in Exhibit "c" attached hereto (the "Other Property") was
to be annexed to the Town (the "Third Pre-Annexation Agreement").
The Other Property was annexed to the Town by Ordinance No. 92.01
dated January 7, 1992. The parties acknowledge that the Other
Property is subject to the Development Agreements but is not
included within Red Hawk Canyon.
I. The Specific Plan was amended pursuant to Town Ordinance
No. 94.15, dated October 4, 1994, and as amended, is hereby made a
part of and incorporated into this Agreement in its entirety. All
references hereinafter to the Specific Plan shall mean the Specific
Plan as so amended.
J. TMPLP conveyed and assigned to WCA, all of its right,
title and interest in and to Red Hawk Canyon, the Other Property,
and the Development Agreements, including, but not limited to, all
rights as "Developer" under the Development Agreements. The Town
acknowledges and agrees to such assignments and recognizes WCA as
"Developer" under the Development Agreements wi th respect to the
property acquired by WCA.
K. Pursuant to a separate agreement between WCA and USH (the
"WCA and USH Agreement"), and the terms hereof, WCA has agreed to
convey and assign to USH all of its right, title and interest in
and to the portion of the District 1 Property owned by WCA, and all
rights as "Developer" related thereto under this Agreement. The
Town acknowledges and agrees to such assignment and will recognize
Page 3 of 42
9909
\925
USH as "Developer" under this Agreement with respect to the
District 1 Property upon the execution of this Agreement. All
references hereinafter to "Developer" shall mean USH with respect
to the District 1 Property, and WCA with respect to the District 2
Property.
L. The parties desire and intend to supersede the First,
Second and Third Pre-Annexation Agreements and the Development
Agreements to (i) implement the Specific Plan, and (ii) facilitate
development of Red Hawk Canyon by providing for the financing and
acquisition or construction of public infrastructure (the
"Infrastructure") as more particularly described in one or more
general infrastructure plans approved by the Town (individually, a
"General Plan," and collectively, the "General Plans") through the
formation of at least two Districts for Red Hawk Canyon. The
parties agree that the public convenience and necessity require the
formation of the Districts for Red Hawk Canyon. The parties
presently intend that WCA and USH will form a District for the
Di strict 1 Property ("District 1") and that WCA will form a
District for the District 2 Property ("District 2"). The parties
desire and intend to leave the Third Pre-Annexation Agreement and
the Development Agreements, as they relate to the Other Property,
in full force and effect.
M. The parties understand and acknowledge that this
Agreement is a "Development Agreement" wi thin the meaning of, and
entered into pursuant to the terms of, the Development Agreement
Act, and that the terms of this Agreement are binding upon WCA, USH
and the Town, and their successors and assigns and, subj ect to
Section 19.8(b), shall run with the land.
N. The parties acknowledge that the ultimate development of
Red Hawk Canyon within the Town is a project of such magnitude that
WCA and USH require assurances from the Town of WCA and USH' s
ability to complete the development of Red Hawk Canyon pursuant to
the Specific Plan before they will expend substantial efforts and
costs in the development of Red Hawk Canyon. The Town, in order to
encourage the development of Red Hawk Canyon consistent wi th the
Specific Plan, agrees to approve the proposed uses of Red Hawk
Canyon set forth in the Specific Plan (including the types of land
uses, densi ties and intensi ties of such land uses as set forth
therein) and to cooperate with and expedite the approval and
granting of permits, plans, rezonings and other development
approvals for Red Hawk Canyon in accordance with the Specific Plan.
O. The parties desire and intend for this Agreement, when
adopted by the governing bodies of the Districts, to also serve as
an intergovernmental agreement ("IGA") among the Districts and the
Town pursuant to Arizona Revised Statutes, Section 11-952.
Page 4 of 42
9969
\926
P. The Town finds that superseding the Pre-Annexation
Agreements and the Development Agreements and the development of
Red Hawk Canyon pursuant to this Agreement will result in
s i gni ficant planning and economic benef its to the Town and its
residents by, among other things, (i) requiring development of Red
Hawk Canyon consistent wi th the Town's approved Specific Plan, (ii)
increasing sales tax and other revenues to the Town based on
businesses and improvements to be constructed within Red Hawk
Canyon, and (iii) creating jobs through new businesses to be
located within Red Hawk Canyon.
AGREEMENT
In reliance upon and for the reasons set forth above and in
consideration of the covenants set forth herein, the parties hereto
agree as follows:
1. Incorporation
Aqreements.
of
Recitals
and
Termination
of
Former
The foregoing recitals are hereby acknowledged and
incorporated herein and the parties hereby confirm/ the accuracy
thereof. The Development Agreements and the First, Second, and
Third Pre-Annexation Agreements as originally executed and
recorded, are, as they relate to the District 1 Property and the
District 2 Property, hereby superseded by the terms and provisions
hereof, and are terminated and of no further force or effect. The
Third Pre-Annexation Agreement and the Development Agreements are,
as they relate to the Other Property, still in full force and
effect.
2. Specific Plan.
2. 1 Development in Accordance wi th Speci fic Plan. Red Hawk
Canyon shall be developed in accordance with the Specific Plan as
may be amended from time to time, pursuant to Section 2.5 below,
which Specific Plan sets forth the basic land uses, densities and
intensities of such land uses as presently authorized for Red Hawk
Canyon and all applicable development regulations related thereto.
The approval by the Town of the Specific Plan and this Agreement
constitutes an affirmative representation by the Town, on which the
Developer is enti tIed to rely, that the Developer (i) shall be
authorized to implement and proceed with the land uses, densities
and intensities, as set forth within the Specific Plan as may be
amended from time to time pursuant to Section 2.5 below, and
subject only to the development regulations contained therein,
notwi thstanding any subsequent changes gf the zoning or land use
controls applicable to Red Hawk Canyon adopted after the date of
the Second Development Agreement, or any amendments thereto, or to
Page 5 of 42
9969
\927
the Specific Plan, and (ii) will be accorded through the legally
required development process the approvals reasonably necessary to
permit the Developer to implement the Specific Plan in accord with
the development review and approval process as set forth in the
Specific Plan, including but not limited to Section VII thereof and
applicable state law. More specifically, the Town agrees to
approve or issue such permits, plans, specifications, plats and/or
re zonings of or for Red Hawk Canyon as may be requested by the
Developer and reasonably required consistent with the Specific
Plan. The Town's failure, without just cause as provided in this
Agreement, to approve the permits, plans, specifications, plats,
rezonings and other matters reasonably necessary to permi t the
Developer to implement the Specific Plan, as the same may be
modified from time to time, or any action by the Town which would
otherwise preclude the Developer from realizing the land use,
densities or intensities specified in the Specific Plan, subject
only to the development regulations contained therein or such
rules, regulations or official policies of the Town as provided in
Section 2.2 below, shall be a breach of this Agreement; provided,
however, that nothing herein shall preclude the Town from the
reasonable exercise of its enacted or promulgated review processes.
2.2 Reaulation of Development. The rules, regulations and
official policies applicable to and governing the development of
Red Hawk Canyon shall be those rules, regulations and official
policies as adopted in the Specific Plan or existing and in force
upon the execution of the Second Development Agreement, and the
Town shall not impose or enact any additional conditions,
exactions, dedications, fees, rules or regulations applicable to or
governing the development of Red Hawk Canyon except only as
follows: (i) future land use rules, regulations and official
policies of the Town which are not contrary to the then existing
land use regulations applicable to and governing the development of
Red Hawk Canyon or of which the application to Red Hawk Canyon has
been consented to in writing by the Developer, (ii) future land use
rules, regulations and official policies of the Town enacted in
order to comply with future state and federal laws and regulations,
provided that in the event that state or federal laws or
regulations prevent or preclude compliance with this Agreement or
the Specific Plan, such provisions of this Agreement or the
Specific Plan shall be modified as may be necessary in order to
comply with such state and federal laws and regulations, (iii)
future generally applicable land use rules, regulations and
official policies of the Town reasonably necessary in order to
protect the public health and safety and not arbitrarily imposed,
and (iv) future modifications of taxes or filing, review or
regulatory fees, if such taxes or fees are generally applicable
throughout the Town.
Page 6 of 42
9969
\928
2.3 Moratorium. The parties acknowledge and agree that the
Specific Plan contemplates and provides for the phasing of the
development of Red Hawk Canyon and that, except as expressly
provided in this Agreement, no moratorium, ordinance, resolution or
other land use rule or regulation or limi tation on the
conditioning, rate, timing or sequencing of the development of Red
Hawk Canyon or any portion thereof shall apply to or govern the
development of Red Hawk Canyon during the term hereof, whether
affecting parcel or subdivision maps (whether tentative, vesting
tentative, or final), building permits, occupancy permits or other
entitlements to use issued or granted by the Town. In the event of
any such subsequent action, the Developer shall continue to be
entitled to apply for and receive approvals for the implementation
of the Specific Plan in accordance with the rules, regulations and
official policies applicable to and governing the development of
Red Hawk Canyon existing and in force upon the execution of the
Second Development Agreement pursuant to Section 2.2 above, subject
only to those future matters set forth in Section 2.2 above and in
this Agreement.
2.4 Periodic Review and Reports. The Town and the Developer
shall meet not less than annually to review and update the status
of the development of Red Hawk Canyon and to consider any
amendments to the Specific Plan or this Agreement, or both. Either
party may schedule such meeting upon reasonable prior notification
to the other party. The Developer shall submit reports, not less
than annually, to the Town, reviewing and updating the status of
the development of its respective portion of Red Hawk Canyon.
2.5 Amendments to Specific Plan and Aareement. The Town and
each respective Developer agree to cooperate and pursue any
amendments to the Specific Plan and this Agreement which are
reasonably necessary to accomplish the goals expressed in the
Specific Plan and herein and the development of such Developer's
property in light of any changes in market conditions or
development requirements. All amendments to the Specific Plan or
this Agreement shall be in writing and must be approved and signed
by all appropriate parties. Any amendment to the Specific Plan
shall be approved by the Town as set forth in Section VII (a) of the
Specific Plan, ~, by ordinance. Any amendment to this Agreement
shall be approved and recorded pursuant to Section 19.11 hereof.
2.6 Cooperation and Alternative Dispute Resolution.
(a) Appointment of Representatives. To further the
commitment of the parties to cooperate in the implementation of the
Specific Plan and this Agreement, the Town and each Developer each
shall designate and appoint a representative to act as a liaison
between the Town and its various departments and the Developer.
Page 7 of 42
9969
i929
The initial representative for the Town (the "Town Representative")
shall be Town Manager, the initial representative for USH shall be
David Snow or a replacement project manager, and the initial
representative for WCA shall be Ron Dillon or a replacement project
manager. The representatives shall be available at all reasonable
times to discuss and review the performance of the parties to this
Agreement and the development of Red Hawk Canyon pursuant to the
Specific Plan. The representatives may recommend amendments to the
Specific Plan or this Agreement which may be agreed upon by the
appropriate parties pursuant to Section 2.5 above.
(b) ExPedited Town Decisions. The implementation of the
Specific Plan shall be in accordance with the development review
process as set forth in the Specific Plan. The Town and the
Developer agree that the Developer must be able to proceed rapidly
with the development of Red Hawk Canyon and that, accordingly, an
expedited Town review process is necessary. Accordingly, the
parties agree that if at any time the Developer believes that an
impasse has been reached with the Town Staff on any issue affecting
Red Hawk Canyon or the Other Property, the Developer shall have the
right to immediately appeal to the Town Representative for an
expedited decision pursuant to this paragraph. If the issue on
which an impasse has been reached is an issue where a final
decision can be reached by the Town Staff, the Town Representative
shall give the Developer a final decision within fifteen (15)
business days after the request for an expedited decision is made.
If the issue on which an impasse has been reached is one where a
final decision requires action by the Town Council, the Town
Representative shall be responsible for scheduling a Town Council
hearing on the issue within four (4) weeks after the request for an
expedited decision is made; provided, however, that if the issue is
appropriate for review by the Town's Planning and Zoning
Commission, the matter shall be submitted to the Commission first,
and then to the Town Council. Adverse decisions of the Town Staff
pursuant to the development review and approval process as set
forth in the Specific Plan or otherwise may be submitted by the
Developer to the Town Council, or to the Planning and Zoning
Commission first, if appropriate, for its consideration, review and
decision. Both parties agree to continue to use reasonable good
faith efforts to resolve any impasse pending any such expedited
decision.
2.7 Default. Failure or unreasonable delay by either party
to perform any term or provision of this Agreement with respect to
implementation of the Specific Plan for a period of ninety (90)
days (the "Cure Period") after written notice thereof from the
other party shall constitute a default under this Agreement;
provided that the Cure Period shall commence to run upon the
Developer's appeal for an expedi ted decision pursuant to
Page 8 of 42
9969
1930
Section 2.6(b) above. Said notice shall specify the nature of the
alleged default and the manner in which said default may be
satisfactorily cured, if possible.
3. Formation of Districts.
3.1 Peti tion and General Plan. Upon filing a General Plan
with the Marana Town Clerk (the "Town Clerk"), a Developer shall be
entitled to file with the Marana Town Council (the "Town Council")
a petition for the formation of a District (the "Petition")
executed by all owners of real property within the District to be
formed calling for the formation of the District. Wi thin thirty
(30) days after the filing of the Petition, the Town Council agrees
to meet (the "First Town Meeting") and will place the issue of
formation of the District on the agenda and will review the
Petition in its customary manner.
3.2 Formation. At the First Town Meeting, the Town Council
will hear and consider the adoption of a resolution of intention to
form the District pursuant to the CFD Act (the "Formation
Resolution") .
3.3 Recordinq Documents. Upon adoption of the Formation
Resolution at the First Town Meeting, the Town shall promptly
record and file and distribute copies of the Formation Resolution
and the General Plan in accordance with the CFD Act.
3.4 Reimbursement of Formation Expenses. The Developer
agrees to pay within twenty (20) days following the receipt of a
detailed written invoice, all necessary and reasonable expenses of
the Town, incl uding consul tant fees, incurred in connection wi th
the formation of the District and as required for purposes of
Sections 6.7 and 12. 1 hereof, and the necessary and reasonable
expenses of the District incurred in the initial operations of the
District. To the extent permitted by applicable laws, the District
shall reimburse the Developer out of the Bond Proceeds, as defined
below, or any other legally available source for all such costs and
expenses paid to the Town and all necessary and reasonable direct
out-of-pocket costs and expenses incurred by the Developer in
connection with the formation and initial operations of the
District. If a District is not formed because of a breach by the
Town of this Agreement, the Town shall reimburse the Developer for
all necessary and reasonable direct out-of-pocket costs and the
expenses paid by the Developer in connection with formation of such
District.
Page 9 of 42
9969
193'
3.5 Formation of District 1 and District 2.
(a) For purposes of Section 3.1 hereof, the Developer
has filed a General Plan and Petition for District 1 with the Town
Clerk and the Town Council has reviewed and approved such General
Plan and Petition. Notwithstanding the requirement in Section 3.3
hereof that the District be formed at the First Town Meeting,
contemporaneously with the execution of this Agreement with respect
to District 1, the Town Council shall adopt a Formation Resolution
for District 1 in accordance with the General Plan and Petition for
District 1 filed by the Developer. District 1 shall be formed for
the purposes set forth in its Peti tion, incl uding wi thout
limitation, financing the construction and acquisition of the
initial phase of the Infrastructure described in the General Plan
for District 1 (the "Phase I Improvements") and funding the portion
of the costs allocated to the District 1 Property for operating and
maintaining the portion of the Phase I Improvements that is not
conveyed to the Town or other governmental enti ty (the "Retained
Infrastructure") . Unless the written consent of the District 1
Developer is first obtained, the Retained Infrastructure shall be
the lighting, landscaping, sidewalks, utilities, irrigation, and
all other appurtenances thereto located within Tortolita Parkway as
described in the General Plan for District 1, except for curbs,
gutters, and street pavement.
(b) For purposes of Section 3.1 hereof, the Developer
has filed a General Plan and Petition for District 2 with the Town
Council and the Town Council has reviewed and approved such General
Plan and Petition. Notwithstanding the requirement in Section 3.3
hereof that the District be formed at the First Town Meeting,
contemporaneously with the execution of this Agreement with respect
to District 2, the Town Council shall adopt a Formation Resolution
for District 2 in accordance with the General Plan and Petition for
District 2 filed by the Developer. District 2 shall be formed for
the purposes set forth in its Petition, including without
limi tation, funding the portion of the costs allocated to the
District 2 Property for operating and maintaining the Retained
Infrastructure and such other purposes as may be necessary or
advisable in accordance with the terms of this Agreement.
(c) Nothing set forth in paragraph (b) above or
elsewhere herein shall be deemed to reflect the District 1
Developer's approval of any District 2 infrastructure located
within District 1 nor the District 1 Developer's agreement that it
or any District 1 Property shall be obligated to pay for, or secure
the payment of, any such infrastructure or the maintenance or
operation thereof.
Page 10 of 42
9969
'932
4. District Implementation of this Aqreement.
4.1 Ratification bv the Districts. Immediately upon
formation, each District shall be considered a party to this
Agreement as provided by the CFD Act, and the Board of Directors of
the District (the "District Board") shall administer the
implementation of this Agreement as it relates to the District and
the real property included therein. Within thirty (30) days after
formation of a District, the District Board shall meet and adopt a
resolution, which includes as a part thereof, a ratification of
this Agreement. Such ratification shall constitute an
acknowledgment by the District that: (i) the portion, if any, of
the Infrastructure to be constructed by the District as provided in
its General Plan is intended to be funded by the District; and (ii)
that it is the intention of the District to reimburse the
Developer, to the extent permitted by law, for the costs of the
Infrastructure, or any portion thereof, constructed by the
Developer after the date of this Agreement but prior to the
availability of District funds to finance construction or
acquisi tion of such Infrastructure. Nothing in this paragraph
shall be construed to relieve the Town of any of the Town's
obligations under this Agreement. Nothing herein shall be
construed as an approval by the Town or its representatives of any
action of the District provided for or required by, or to be taken
as a result of, this Agreement upon formation of any of the
Districts. Moreover, the Town shall not be responsible for the
compliance by the Districts with, or performance of any obligations
of the Districts pursuant to, this Agreement.
4.2 Assumption of Prior Aqreements. Each District shall, to
the extent legally permissible and to the extent related to the
property within the District, assume, perform or accept assignment
of the Sewer Agreement and the Water Agreement, and amendments
thereof and other agreements entered into by Developer and third
parties pertaining thereto, including without limitation,
Participation Agreements, as defined in the Water Agreement,
subject to the Developer obtaining all necessary third-party
consents and amendments in advance of such assignments to the
District.
4.3 Consul tation wi th the Developer. The rights of the
Developer and consents or approvals required from the Developer as
set forth in Sections 5.1, 5.2(a), 5.3, 5.4,6.3,6.4,6.6,6.8,8
and 19.11 of this Agreement shall also apply by specific written
assignment to any and all assignees of the Developer of any
interest in the acreage within the District, but shall terminate as
to each such party as well as such Developer at the time that any
such assignee or Developer no longer individually owns or has any
interest in at least five (5) acres of acreage within the District.
Page 11 of 42
9969
\933
Each Developer shall designate any assignee in a written instrument
duly recorded in the Official Records of Pima County, Arizona.
Absent an express written assignment, all rights and obligations of
Developer shall remain with Developer.
5. Oraanization and Operation of the Districts.
5.1 Appointment of Boards of Directors. The initial members
of the District Board shall be those individuals named in the
applicable Resolution and acceptable to Developer (the "District
Board Members"). In the event of a vacancy occurring on the
expiration of the term of an appointed District Board Member or
upon the death, resignation or inability of a District Board Member
to discharge the duties of such office, the District shall notify
the Developer of such vacancy and give the Developer a reasonable
opportuni ty to recommend candidates for appointment to fill the
vacancy and to advise and consul t wi th the Town in connection
therewi th. After considering the general qualifications of any
candidates recommended by the Developer, the Town shall promptly
appoint a new District Board Member.
5.2 Appointment of District Officers and Advisers.
(a) Clerk and Treasurer. Promptly following the First
Board Meeting, each District Board shall, after considering any
recommendations submitted at such meeting by Developer in the form
of a written list of available candidates, appoint individuals to
the positions of District Clerk and District Treasurer in
accordance with the CFD Act. Upon the death, resignation or
inability of either the District Clerk or the District Treasurer to
discharge the duties of such office, each 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 District in connection
therewi th. After considering the general qualifications of any
candidates recommended by the Developer, the District shall
promptly appoint a new Clerk or Treasurer.
(b) Independent Financial Adviser. Each District shall
retain an independent financial adviser to assist the District in
evaluating budgets, feasibility reports and similar matters.
5.3 General Operation. Each District shall maintain its
records and conduct its affairs in accordance with the CFD Act and
the laws of the State of Arizona. Each District Board shall use
its best efforts to hire, as soon as reasonably possible, a general
manager for the District from a list of available candidates
submitted by the Developer.
Page 12 of 42
9969
1934
5.4 Election. As soon as practicable, each District Board
shall adopt a resolution ordering that an election (the "Election")
be held on any election date designated by the District. The
Election shall be called for the following purposes: (i) for the
electors residing in the District or, if none, the landowner, to
vote to authorize the issuance of general obligation bonds of the
District, subject to the restrictions set forth herein, in an
aggregate principal amount established by the District Board after
consultation with the Developer; and (ii) for the electors residing
in the District or, if none, the landowner, to vote to authorize
and establish a maximum ad valorem tax rate (but in no case an
amount in excess of $0.30 per $100 of assessed valuation) that may
be levied on the assessed value of the real and personal property
in the District, which maximum rate shall be a rate sufficient to
enable the District to levy and collect tax revenue each year in an
amount approximately equal to the amount of the respective
District's operation and maintenance costs allocated to it pursuant
to Section 9.
5.5 Reimbursement of Expenses. To the extent permitted by law
and only to the extent that general operating revenues are
available for such purposes the District shall pay the following:
(i) each Director shall be paid compensation for his services as a
member of the District Board in the amount of $100 per meeting of
the District Board attended by the Director, and (ii) the Directors
shall be reimbursed for their actual costs and expenses incurred in
performing their duties.
5.6 Directors' Insurance. Each District shall, to the extent
reasonably possible, maintain at all times Directors and Officers
Liability Insurance covering the individual District Board Members
and the District Board collectively in such amounts as the District
Board may from time to time deem prudent. Until liability insurance
is available to and obtained by the District at acceptable rates in
the Developer's opinion, and after such insurance is obtained to
the extent that the following matters are outside the scope of the
insurance coverage: (i) the indemni ty provision of Section 19. 18
shall benefi t the District as well as the Town; and (ii) the
Developer shall indemnify the District Board Members individually
and the District Board collectively in the same manner from claims
and costs incurred as a result of final acts of the District Board
in its official capacity acting within the scope of its authority
under the CFD Act and the terms of this Agreement. The Developer
will provide written notice to the District when the Developer
becomes aware that liability insurance is available to the District
Board at acceptable rates in the Developer's opinion.
5.7 Loans to District. In the event payments become due from
a District under any agreement to which the District is a party or
Page 13 of 42
9969
\935
if funds are required to commence construction of Infrastructure
before the Bond Proceeds are available or otherwise to fulfill the
District's obligations under this Agreement or the CFD Act, the
Developer shall have the right, but not the obligation to make a
loan to the District in such amounts and upon such terms to be
agreed upon between the District and the Developer. The Developer
shall be repaid the loan amount, together with any interest agreed
upon at the time the loan is made, from any available source,
including Bond Proceeds to the extent permitted by law.
6. Construction and Acquisition Of Improvements.
6.1 Implementation of General Plan. Upon formation, each
District shall adopt and implement its General Plan in a reasonable
manner and as set forth in this Agreement. The Town and each
Di strict shall use their best efforts, in cooperation with the
Developer, to enter into such addi tional IGAs wi th the Ci ty or
County, as appropriate, as are required to implement the General
Plan.
6.2 Phasinq of Development. Except with respect to Section
6.4(b), the Town acknowledges that the Developer intends to develop
Red Hawk Canyon in phases, the size and timing of which shall be
dictated by market conditions, and agrees that the Infrastructure
will be constructed in phases, subject to fulfillment of the
requirements of this Agreement.
6.3 Feasibilitv Reports.
(a) Initial Phase. At the First Board Meeting for
District 1 or at any time thereafter, the Developer shall have the
right to submit to the District Board the feasibility report
concerning the construction or acquisition of the Phase I
Improvements (the "Phase I Report"). Promptly after obtaining the
Phase I Report and after complying with the notice requirements of
the CFD Act, District 1 shall hold a public hearing on the Phase I
Report in accordance wi th the CFD Act. As soon as reasonably
possible but no later than ten (10) days following the conclusion
of such public hearing, the District Board shall either approve the
Phase I Report or in good fai th rej ect the Phase I Report based
upon an independent financial analysis or engineering study and
provide to the Developer written notice stating, in reasonable
detail, why either the proposed financing or the engineering design
for Phase I Improvements is not acceptable. If District 1 approves
the Phase I Report, it shall adopt an appropriate resolution (the
"Phase I Resolution") authorizing the construction or acquisition
of the Phase I Improvements in Completed Segments (defined below)
and the payment or reimbursement therefor consistent with the
approved Phase I Report.
Page 14 of 42
9969
\936
(b) Review of Subsequent Reports Submitted. Any
acquisition or construction by a District of all or part of the
Infrastructure not included in the Phase I Improvements
(hereinafter the "Phase II Improvements," and "Subdivision
Improvements," respectively), shall require the prior preparation
of a feasibility report (a "Feasibility Report") and the approval
of that report by the District Board in accordance with the CFD
Act. Each Feasibility Report shall be consistent with the General
Plan and shall set forth all of the following: a detailed
description of the Infrastructure to be constructed or acquired and
any to be constructed with funds advanced to any other governmental
agency by intergovernmental agreement with the District, an
estimation of construction or acquisition costs and operation and
maintenance costs, benefits analysis, proposed allocation of
assessments or taxes, the method of financing the construction or
acquisition of the specific Infrastructure, including any
rights-of-way or improvements necessary therefor and indicating
specific portions thereof to be acquired as construction is
completed (the "Completed Segments"), and analysis of the financial
feasibility of the financing method designated and details
concerning the types of bonds to be issued and the proposed
repayment method. Promptly after receiving a Feasibility Report
prepared or approved by the Developer, and after complying with the
notice requirements of the CFD Act, the District Board shall hold
a public hearing and consider the Feasibility Report as provided by
the CFD Act. The District Board shall, as soon as reasonably
possible, approve the Feasibility Report unless the District Board
in good faith rejects the Feasibility Report based upon an
independent financial analysis or engineering study as evidenced by
written notice delivered to Developer within ten (10) days
following the public hearing, which written notice shall state in
reasonable detail why either the proposed financing or the
engineering design for the project is not acceptable. If the
District approves the Feasibility Report, it shall adopt an
appropriate resolution authorizing the construction or acquisition
of the Infrastructure described therein in Completed Segments and
the payment or reimbursement therefor consistent with the approved
Feasibility Report. The District shall not accept any Feasibility
Report that has not been prepared by or approved in writing by the
Developer.
(c) Wi thdrawal of Reports. Notwithstanding any of the
foregoing, the Developer shall be permitted to withdraw the Phase
I Report or any other Feasibility Report, from consideration by the
District at any time before the conclusion of the hearing thereon.
In the event of such a withdrawal, the District shall not approve
the Feasibility Report or adopt any resolution which would effect
an implementation of any part of the transaction described in such
Feasibili ty Report. The Developer shall be permi tted to resubmi t
Page 15 of 42
9969
1937
any such withdrawn Feasibility Report or any Feasibility Report
which has been rej ected by the District and then amended by the
Developer, at such time as the Developer may, in its sole
discretion, deem advisable; and any such resubmitted Feasibility
Report shall be processed and approved by the District in the same
manner as if it were being submitted for the first time.
(d) Reimbursement of Expenses. The Developer submitting
the Phase I Report, or the Developer or any other party submitting
any subsequent Feasibility Report approved by the Developer, shall,
upon approval of the Report by the District, be reimbursed for
reasonable costs and expenses incurred in the preparation thereof,
including the cost of engineering and traffic studies and other
expendi tures required to comply wi th the zoning condi tions and
stipulations described in the Specific Plan from the Bond Proceeds
or from the general operating revenues of the District, to the
extent permitted by law and only to the extent that Bond Proceeds
and general operating revenues are available for such purpose.
6.4 Developer's Construction of Improvements.
(a) Developer's Rioht to Construct Improvements. The
Developer shall have the right at any time to construct or cause to
be constructed any part or all of the Infrastructure in conformity
with the General Plan, the applicable Feasibility Report and this
Agreement, and to have a District finance the cost of acquisition
of the Infrastructure constructed upon submission to the District
Board and approval of a Feasibili ty Report pertaining to such
Infrastructure. All such construction shall be performed, subject
to applicable permit requirements for any buildings to be
constructed, and in a good and workmanlike manner and in compliance
with all applicable standards, codes, rules or regulations of the
Town, including modifications thereof as provided in the Specific
Plan, and of the Ci ty, the County, the State of Arizona, or the
federal government, as applicable. Either a preliminary or final
map of dedication in form and content acceptable to the Developer
shall be filed wi th and approved by the appropriate governmental
authority. The Developer, its agents and employees, shall have the
additional right, upon the District's approval of the Feasibility
Report pertaining to such construction as provided for herein, to
enter and remain upon and cross over any Town or District easements
or rights-af-way to the extent reasonably necessary to facilitate
such construction and for necessary repairs or maintenance of the
Infrastructure, provided that the Developer shall restore such
easements and rights-of-way to their prior condi tion upon
completion of such construction, repairs or maintenance. To the
extent permitted by law, the prior dedication of any easements or
rights-of-way shall not affect or proscribe the Developer's right
Page 16 of 42
9969
1938
to construct Infrastructure thereon or to be paid or reimbursed for
such construction upon acquisition by the District.
(b) Guarantee of Completion. USH shall complete the
construction of the regulation, at least 6500 yard long eighteen-
hole golf course improvements to be located wi thin District 1 in
accordance wi th plans and speci fica tions approved by WCA and USH
and pursuant to the grading plans approved by the Town as part of
USH's Developer's Equity, as provided in Section 6.7(s). Such golf
course improvements shall be constructed no later than two and one-
half years after the water improvements financed with the proceeds
of the District 1 Assessment Bonds (as such terms are hereinafter
defined) have been completed. If such golf course improvements are
not so completed by such applicable date, USH shall on such date
pay $3,500,000.00, less the amount of actual construction costs
that have been paid to such date by USH for the golf course
improvements. These monies shall be paid to a third party escrow
agent and shall be used by said escrow agent to complete the
construction of the golf course improvements in accordance with the
plans and specifications contemplated by this Section.
Construction of the golf course improvements will thereafter be
supervised and managed by WCA. Notwithstanding Section 15 of this
Agreement, USH shall remain obligated for the construction of said
golf course improvements in the event that USH's rights, privileges
and benefi ts as "Developer" wi th respect to District 1 and the
District 1 Property are reassigned to WCA.
6.5 District's Construction of Improvements.
(a) Construction Manaqement. If the Developer has not
indicated in the Feasibility Report that it has elected to
construct all or any part of the Infrastructure which is in part of
the General Plan and for which a Feasibility Report has been
approved by a District, the District shall, as soon as reasonably
possible following its approval of such Feasibility Report, award
a construction management agreement to a company acceptable to the
District, subject to any applicable competitive bidding
requirements imposed by Arizona law, and shall enter into a written
agreement in form and content acceptable to the District providing
for the completion of construction of the Infrastructure as
described in the applicable Feasibility Report in a good and
workmanlike manner and at reasonable rates, subject to any
applicable competitive bidding requirements imposed by Arizona law.
(b) After such agreement is executed, the District shall
then proceed to acquire in the manner described in Section 6.8
hereof any easements, rights-of-way or improvement sites not
previously dedicated and shall require that construction of the
applicable phase of Infrastructure as described in the approved
Page 17 of 42
9969
1939
Feasibility Report commence as soon as reasonably possible
thereafter.
(c) Construction Standards; Control. The District shall
use its best efforts to cause all such construction or other work
to be performed herein in conformity with the General Plan and the
applicable Feasibility Report, in a good and workmanlike manner and
in compliance with all applicable standards, codes, rules or
regulations of the Town, including modifications thereof as
provided in the Specific Plan, Pima County, the State of Arizona,
or the federal government. Notwithstanding the foregoing, the
District Board shall have exclusive jurisdiction and control over
all of the construction by the District, subj ect to the Town's
right to inspect the construction of improvements and except to the
extent that the District Board may by agreement wi th any other
public or private body authorize the same to exercise jurisdiction
or control over any or all of the proj ects of the District. It
shall not be necessary for the District to pay any fee, other than
the customary base fee imposed by the Town as applicable to all
governmental agencies, to obtain any license, permit or other
authorization from any board, commission or department of the Town,
in order to construct, reconstruct, acquire, extend, repair,
improve, maintain or operate any portion of the Infrastructure. For
any buildings to be constructed by the District, fees shall be
limited to the Town's customary fees associated with checking plans
and inspections of such structures. Copies of as-buil t drawings
shall be provided to the Town for all such improvements constructed
by or on behalf of the District.
(d) All improvements financed with Bond Proceeds will be
public infrastructure improvements.
(e) Construction of all bond financed improvements will
be publicly bid and awarded to the lowest responsible bidder.
(f) Payment and performance of all bond financed
improvements will be insured by payment and performance bonds.
6.6 Bond Issuance and Sale.
(a) Order. After the adoption of the Phase I Resolution,
the District Board for District 1 shall adopt, as soon as
practicable, an appropriate bond resolution in a form acceptable to
District 1, the Developer and Bond Counsel to District 1 (the "Bond
Resol ution"), ordering the issuance and sale of bonds as provided
in the approved Phase I Report, in an amount not less than the
amount provided for in the approved Phase I Report, and allowing
for sales of bonds in increments to accommodate any subphasing
requested by the Developer, for the purpose of financing the
Page 18 of 42
9959
'940
payment of or reimbursement for the construction or acquisition of
the Phase I Improvements. Upon the approval of any subsequent
Feasibility Report calling for the issuance of general obligation
bonds of a District, the District Board, if necessary, shall order
a bond election to be held on any election date designated by the
District. As soon as practicable thereafter, if authorized in the
election, the District Board shall adopt an appropriate bond
resolution ordering the issuance and sale of such bonds in a total
amount not to exceed that approved in the election and for the
bonds to be sold at the times and in the amounts specified in the
Feasibili ty Report for the purpose of financing the cost of the
Infrastructure described in such Feasibili ty Report. Upon the
approval of any subsequent Feasibility Report calling for the
issuance of special assessment bonds, following notice and public
hearing and all other procedures as required by the CFD Act, the
District Board shall adopt, as soon as practicable, an appropriate
bond resolution ordering the issuance and sale of special
assessment bonds and levying the special assessments for the
purpose of financing the construction or acquisition of the
particular Subdivision Improvements described in the subsequent
Feasibili ty Report. Upon the approval of any Feasibili ty Report
calling for the issuance of revenue bonds, following notice and
public hearings as required under the CFD Act, the District Board
shall adopt, as soon as practicable, an appropriate bond resolution
and shall pledge the appropriate revenues to be collected and held
in trust for the District to be applied toward payment of the Debt
Service (as defined by the CFD Act) on the bonds. The Bond
Resolution and each subsequent bond resolution adopted by the
District shall designate the underwriter and Bond Counsel for the
Bonds who shall be selected by Developer wi th approval of the
District, which approval shall not unreasonably be withheld or
delayed.
(b) Proceeds. Each Bond Resolution shall provide that
the proceeds derived from the sale of the bonds described therein
(the "Bond Proceeds") shall be deposited in a project fund and such
other reasonably required funds as are necessary based upon the
Phase I Report. The amount of Bond Proceeds delivered to each such
fund shall be as identified in the Phase I Report. Bond Proceeds
delivered to the various funds established by the Bond Resolution
of the District, including the project fund, shall be used solely
for the purposes set forth in the Phase I Report. Either the Phase
I Report or the Bond Resolution or both shall prescribe in a
reasonable manner that the project fund be used solely to payor to
reimburse, to the extent permitted by law, the costs (including
necessary incidental costs) of construction or acquisition of the
Phase I Improvements. The Bond Resolution shall further prescribe
in a reasonable manner that any Bond Proceeds remaining after
reimbursements and payments for construction or acquisition of the
Page 19 of 42
9969
1941
Phase I Improvements, except reasonably required reserves, shall be
used to pay Debt Service at the earliest permissible date, on any
bonds then outstanding. The limitations and other provisions
contained herein concerning the Bond Proceeds shall be similarly
applicable to the proceeds derived from the sale of any bonds
issued to finance the construction or acquisition of the Phase II
or Subdivision Improvements.
(c) Ad Valorem Taxes. Subject to the limitations stated
in Sections 5.4 and 6.7 hereof, each District shall annually levy
and collect an ad valorem tax upon all taxable property in the
District which shall be sufficient after giving prudent
consideration to other funds available to the District to make such
pa yments (i) to pay when due the principal of, interest on and
premium, if any, on the general obligation bonds sold by the
District, and (ii) to the extent permitted by law, to pay
reasonable maintenance, operating and other expenses of the
District. The District shall not levy any additional taxes or
assessments without the prior written consent of the Developer.
6.7 Bond Restrictions. Notwi thstanding anything contained
herein to the contrary, the following restrictions shall apply to
all District bond issuances:
(a) Neither District 1 nor any District formed within
the boundaries of District 1 shall issue revenue bonds or general
obligation bonds without the Town's prior written approval;
(b) Neither District 2 nor any District formed within
the boundaries of District 2 shall issue revenue bonds without the
Town's prior written approval or general obligation bonds in such
a manner as to potentially increase the aggregate ad valorem tax
rate in any subsequent year for general obligation bonds of such
Districts greater than $3.00 per $100 of assessed valuation, based
on the year in which the maximum annual debt service for the bonds
outstanding and to be outstanding will occur and on secondary
assessed valuation at the time of issuance of the applicable bonds
assuming no reduction in valuation of property in the District as
provided by the County Assessor as of the date of issuance of such
bonds, without the Town's prior written approval;
(c) Any general obligation bond authorization for
District 2 or any District formed within the boundaries of District
2 shall expire no later than five (5) years from the date of
initial voter authorization;
(d) Neither District 2 nor any District formed within
the boundaries of District 2 will sell any bonds after twenty five
Page 20 of 42
9969
1942
(25) years from the date of formation of District 2, wi thout the
Town's prior written approval.
(e) Each assessment bond issued by District 1, District
2, or any other District formed wi thin the boundaries of ei ther
shall include a debt service reserve fund equal to the lesser of
one year's debt service or the maximum amount allowed by federal
tax law to be deposited therein from bond proceeds without causing
interest on the bonds to be included in gross income for federal
income tax purposes;
(f) Each assessment lien for District assessment bonds
shall be, as required by law, a senior lien subject only to a lien
for general taxes;
(g) The aggregate principal amount of all series of
assessment bonds that may be issued by District 1 and any other
District formed within the boundaries of District 1 shall not
exceed SI8,000,000 (the "District 1 Assessment Bonds") without the
Town's prior written approval;
(h) The aggregate principal amount of all series of
bonds that may be issued by District 2 or any other District formed
wi thin the boundaries of District 2 shall not exceed S 75, 000, 000
without the Town's prior written approval;
(i) All District 1 Assessment
later than July 1, 2011, unless District
prior written approval;
Bonds shall mature no
1 receives the Town's
(j) Any bonds issued by District 2 or any District
formed wi thin the boundaries of District 2 shall not mature more
than twenty (20) years from the date of their issuance without the
Town's prior written approval;
(k) At the time of sale of the District 1 Assessment
Bonds, an appraisal prepared by an MAl appraiser must show that the
property in District 1 or any other District formed wi thin the
boundaries of District 1 with the completed, bond financed
infrastructure is worth at least as much wholesale as the principal
amount of the District 1 Assessment Bonds;
(1) At the time of sale of bonds for District 2 or any
District formed within the boundaries of District 2, an appraisal
prepared by an MAl appraiser must show that the property in
District 2 or any other District formed wi thin the boundaries of
District 2, wi th the completed, bond financed infrastructure is
worth at least as much wholesale as the principal amount of all
applicable bond debt;
Page 21 of 42
9969
1943
(m) Neither District 1, District 2, nor any District
formed wi thin the boundaries of ei ther shall publicly offer and
sell District bonds unless such bonds have received an investment
grade rating, are insured by an insurance company that is rated in
one of the top two investment grades, or the District has received
an appraisal prepared by an MAl certified appraiser indicating that
a ratio of land value of the assessed area to debt is at least 3 to
1 ;
(n) Unless District bonds comply with
above, such bonds must be privately placed with
"qualified" entities as such term is defined by
Exchange Commission in Rule 144;
paragraph (m)
sophisticated,
the Securi ties
(0) Privately placed District bonds must have a minimum
$100,000 denomination in order to assure purchases by entities that
can bear the financial risk;
(p) No subsequent transfers of privately placed District
bonds will be allowed to entities other than entities described in
paragraph (n) above unless the requirements for publicly offering
the bonds have been met;
(q) The Developers within the District shall indemnify
the Town and its agents and employees and shall hold the Town and
its agents and employees harmless for, from, and against any and
all claims and costs incurred, including but not limited to
reasonable attorneys' fees incurred in a challenge in any
subsequent judicial or administrative proceeding to the sale of
bonds by such Developer's District;
(r) Any disclosure document prepared in connection with
the sale of District bonds to qualified entities must clearly
indicate that neither the general fund of the Town nor that of the
State of Arizona or any political subdivision of either (other than
the District) shall be liable for the payment or repayment of any
obligation, liability, bond, or indebtedness of the District, and
neither the credit nor the taxing power of the Town, the State of
Arizona, or any poli tical subdivision of either (other than the
District) shall be pledged therefor;
(s) A concise disclosure document must be provided by
Developer or Developer's successor to each potential purchaser of
a residential lot within the District disclosing the existence of
a District assessment or tax (assuming such assessment or tax
remains at the time of purchase of the residential lots). Each
potential purchaser must acknowledge in writing that the purchaser
received and understood the concise disclosure document. The
District shall maintain records of the written acknowledgments;
Page 22 of 42
9969
1944
(t) Unless requested by the Town, the name of the Town
will not be used in describing the name of the District or the name
of the bonds;
(u) The Developer will provide "Developer's Equity" of
at least $0.25 in infrastructure and community improvements for
each $1.00 of debt to be issued by the District;
(v) Neither District 1, District 2 nor any other
District formed within the boundaries of either shall transfer debt
to each other;
(w) District 1, District 2, and any other District
formed within the boundaries of either shall comply with voter
and/or landowner approval requirements pursuant to all applicable
state statutes; and
(x) Prior to the sale of any bonds, the District shall
provide the Town with a certification that evidences compliance
with the requirements of Section 6.7 of this Development Agreement.
The Town may accept the certification, and, if the Town does not,
it shall cause the District and the relevant Developer to receive
detailed objections to the District's certification of compliance
as quickly as reasonably possible, but in all events within twenty-
one \21) days after receipt of such certification or the
certification will be deemed accepted. Notwithstanding the
foregoing, with respect to the initial issuance of District 1
Assessment Bonds, the Town shall cause the District 1 Developer to
receive such written objections, if any, not later than five (5)
days following the Town's receipt of such certification. Failure
to object by the Town in any such request does not create a right
in any party hereto, any beneficiary thereof, or any other party
for any claim arising out of issuance or sale of any bonds, such
right to obj ect being only for the benefi t of the Town and its
representatives. If the Town provides detailed objections to the
certification, the Town shall use its best efforts to promptly
resolve such objections with the District.
6.8 District Acauisition of Infrastructure.
(a) Sale of Completed Seaments. Upon the Developer's
request following the completion of construction of a Completed
Segment of the Phase I Improvements and upon receipt by the
Developer of all payments provided for such improvements in the
Phase I Resolution, or after the Developer has received a binding
commitment from the District providing for such payment to be made
by the District in the future in a manner acceptable to the
Developer, the Developer will convey the Completed Segment,
together with the underlying rights-of-way and sites described in
Page 23 of 42
9969
J945
the Phase I Resolution (if not previously dedicated, to the
District, and, the District shall promptly accept and approve such
dedications in the manner provided for in paragraph (c) below;
provided, however, that the Developer shall be permitted to retain
an interest in the Acquisition Property, as hereinafter defined, by
agreement with the District until full payment has been received by
the Developer. Upon the Developer's request following the
completion of construction of a Completed Segment of Phase II or
Subdivision Improvements, the District shall acquire such
improvements in Completed Segments, together with the sites and
rights-of-way therefor (if not previously dedicated) (collectively
the Phase I Completed Segments and the additional Completed
Segments are referred to hereinafter as the "Acquisi tion
Propertyfl), by making payment or by reaching an agreement with the
Developer or other party constructing such improvements providing
for payment therefor as described in the Feasibility Report
pertaining to the improvements.
(b) Acquisition Price. The District's acquisition of all
or any portion of the Acquisition Property, upon acceptance by the
District, shall be subject to the following:
unless otherwise agreed, the District shall
pay the party constructing the Completed
Segments for the Infrastructure portion of the
Acquisition Property, in cash, an amount equal
to the actual costs and expenses reasonably
incurred in constructing that Infrastructure
and for acquiring the land upon which it is
located and rights-of-way associated
therewith, plus the "carrying costs"
associated therewith, to the extent that
reimbursement of carrying costs is requested
up to the maximum amount of Bond Proceeds
allocated for such purpose in the applicable
Feasibility Report. "Carrying costs, fI as used
in this paragraph, means the reasonable
interest, fees, points and all other
reasonable amounts charged in connection with
any loan or loans for the purposes of
acquiring the land and construction of the
Infrastructure.
(c) Acceptance bv the District. All transfers of
Acquisi tion Property to the District pursuant to this Agreement,
with or without consideration, shall be accepted by the District if
the Acquisition Property is free and clear of liens or other
monetary encumbrances and if the Infrastructure portion thereof is
consistent wi th the Phase I Report or other approved Feasibili ty
Page 24 of 42
9969
'946
Report pertaining thereto and in compliance with applicable Town
standards, as modified by the Specific Plan, and City or County
standards, as appropriate.
Nothing in this Section 6.8 shall be construed to prohibi t or
otherwise limit the ability of the Developer or any other private
land owner to dedicate property to a District without consideration
by instrument in form and content reasonably acceptable to the
Developer.
6.9 Improvements Reimbursement.
The parties hereto recognize and acknowledge that the
development of Red Hawk Canyon and the resulting augmentation of
commercial and residential activities upon and about Red Hawk
Canyon which directly benefit the Town will increase the traffic
flow upon certain arterial roadways. The parties hereto further
acknowledge that such development shall increase the need for
construction of the Phase I Improvements. The parties hereto also
recognize and acknowledge that the Town does not have the current
financial capacity to construct the necessary public roadway
improvements upon and about Red Hawk Canyon. Accordingly, WCA
intends to construct, or arrange for the construction by District
1 or USH, of the Phase I Improvements and such other roadway
improvements as are mutually approved by the Town and WCA and to
dedicate same for the use and benefit of the residents of the Town
and the public at large as provided in this Agreement. Because of
the benefit to the public health, welfare and safety if such public
improvements are constructed and because of the increase in the
Town's revenues which will result from sources located upon or
about Red Hawk Canyon, the Town will establish a funding mechanism
and shall reimburse WCA in full upon request of WCA for the value
of the District 1 Property, such value to be the amount incurred by
WCA, District 1, or USH in the construction of such public
improvements subject, however, to the conditions and limitations
set forth below:
(a) The Town shall not be required to reimburse WCA
for any portion of such public improvements unless a luxury resort
hotel of no less than 200 rooms with related recreational
facili ties has previously been completed and is operating on the
District 2 Property and within the Town limits.
(b) The reimbursement funding mechanism and source
of funds shall not be designated at this time
but the funds may be derived from one or more
the following sources:
Page 25 of 42
9969
\947
(1) A Municipal Property Corporation;
(2) Sales Taxes;
(3) A Highway Users Fund;
(4) Local transportation assistance funds; and
(5) Other development related funds.
(c) At the time of any requests for reimbursement
hereunder, the Town shall not be required to reimburse WCA for any
amount in excess of one-half (~) of the amount of all transaction
privilege taxes and sales taxes previously received by the Town in
the fiscal year from room charges, golf charges, food and beverage
and retail sales at the hotel facility described in paragraph (a)
above less all prior reimbursements hereunder. Requests for
reimbursement shall be made once per fiscal year no later than
April 1, and shall be paid in the next fiscal year.
(d) The reimbursement amount shall be based upon an
engineer's certification of the actual construction cost of the
improvements made by WCA, District 1, or USH. The engineer shall
be mutually approved by WCA and the Town and approval shall not be
unreasonably withheld.
(e) No reimbursement shall exceed the outstanding
balance of the unreimbursed construction cost of the improvements.
(f) The Town shall not be required to apply any
further reimbursements from and after August 2, 2008 irrespective
of whether or not WCA has by then been reimbursed in full for the
construction of the public improvements.
(g) The Town shall not be required to reimburse WCA
for any portion of such public improvements not located within the
town limits of the Town at the time such improvements are
constructed.
7. Public Ownershi9 and Maintenance of Certain Infrastructure.
7.1 Dedications of Certain Water/Sewer Improvements and
Roadwav Improvements. No later than forty-five (45) days after the
approval of the Phase I Report or any subsequent Feasibility Report
in accordance with the terms of this Agreement, if requested, the
Town may approve, if it has not yet done so, and a District shall
request that the City and the County approve a final map of
dedication with respect to the property described in such
Page 26 of 42
9959
\948
Feasibility Report. The District shall, as soon as practicable
after approval of the final map of dedication, and after the
construction of the Infrastructure or any Completed Segment thereof
has been concluded, acquire the Acquisi tion Property pertaining
thereto and accept an assignment of the rights to recei ve any
future payment of City or County revenues resulting therefrom. As
soon as the District determines that it is feasible, if the
Infrastructure so completed consists of certain Water/Sewer
Improvements to be dedicated to the City or County, or County
Roadways, the District shall dedicate ownership of such Water/Sewer
Improvements or County Roadways and land and rights-of-way
associated therewi th to the Ci ty or the County by instrument in
form and content acceptable to the Developer and the Ci ty or the
County, as the case may be. The District shall request that the
City or the County, as appropriate, shall immediately thereafter
accept such dedications, and the City or the County shall
thereafter, at its own cost and expense, maintain and operate such
Water/Sewer Improvements or County Roadways in accordance with its
customary standards. Upon the request of the Town, a District's
Infrastructure that is not otherwise dedicated or required to be
dedicated to another governmental authority, shall be dedicated by
the District to the Town, which shall immediately thereafter accept
and approve such dedications; provided, however, that the District
may elect to continue to operate and maintain, in cooperation with
the Town, all or any portion of such Infrastructure dedicated to
the Town. Other than as provided herein, ownership of all
Infrastructure shall remain with the District following its
acquisition and shall be maintained and operated by the District as
provided in Section 8 hereof so long as the District owns the
Infrastructure.
7.2 Contributions. The Town and the District acknowledge that
owners of real property outside the Districts but within the Town
and adjacent to roads, water lines, sewer lines, and other
Infrastructure to be constructed or acquired by the Districts
pursuant to this Agreement may be benefitted by such Improvements,
and the Town shall cooperate wi th the Districts and shall not
unreasonably wi thhold its consent to the Districts' provision of
such services within the Town but outside District boundaries. In
order to fairly distribute the burden imposed in acquiring,
planning, and constructing such improvements among such persons and
entities benefiting from such improvements, the Town and each
District agree to use reasonable efforts, to the extent permitted
by law, to require or to cause such adjacent owners to pay their
proportionate share as determined by the Town, the City or the
County, as applicable, of the cost of such improvements as a
condi tion to obtaining any permi ts, licenses, or water and sewer
hookups or other approvals from the Town pertaining to such
adj acent, benefi t ted property. Any such monies received by the
Page 27 of 42
9959
\949
Town, the City or the County from such adjacent, benefitted owners
shall be paid to each District only to the extent that the District
has not then otherwise recovered the cost of such improvements.
8. District Operation And Maintenance Of Retained Infrastructure.
8.1 The Districts shall operate and maintain in good order,
condition and repair at all times during the term of this Agreement
all of the Retained Infrastructure and the Districts shall be
permitted to maintain any other dedicated improvements approved by
the Developer for such District, provided that agreement is reached
with the appropriate authority providing for the Districts to
maintain such public improvements. The Districts shall contract to
obtain labor, materials and equipment for the operation and
maintenance of the Retained Infrastructure. Such contracts shall
be awarded to a company or companies acceptable to the Districts at
reasonable rates, subject to any applicable competitive bidding
requirements imposed by Arizona law. The service contracts shall
require that such work and services be performed in a good and
workmanlike manner and in compliance with all applicable federal,
State and local statutes, laws, regulations and ordinances.
8.2 The Districts shall pay, ei ther from available revenues
or by the levy of additional taxes as provided in the CFD Act, all
costs, expenses and fees incurred in connection with such operation
and maintenance as provided in their annual budgets prepared for
each fiscal year during the term of this Agreement. The annual
budgets shall be submitted to Developer and to the Town for review
and comment pursuant to A.R.S. ~48-716.
9. District Budqets.
9.1 Administrative Expenses. Each District shall provide in
its budget amounts necessary for its own administration expenses,
including compensating its Board Members, General Manager, Clerk,
Treasurer and consul tants and providing insurance coverage. Each
District shall pay its own administrative expenses either from
available monies or by the levy of taxes.
9.2 Operation and Maintenance Expenses. The total costs of
operating and maintaining the Retained Infrastructure (excluding
any administration expenses) shall be allocated between District 1
and District 2 as follows: each District shall pay its
proportionate share of operating and maintenance costs.
Proportionate share shall be determined based on the number of
"developable uni ts" wi thin each District, where the number of
developable units equals either the number of developable acres or,
after subdivision of all or part of the developable acres within a
District, the sum of the dwelling units and the remaining
Page 28 of 42
9969
1950
developable acres wi thin the District. The Districts may in good
faith negotiate and agree upon a different allocation formula
without the Town's approval as required in Section 19.11; however,
if the Town does not approve such different allocation, it may
enforce the allocation formula set forth herein. Each District
shall include in its budget and shall pay its allocated share of
the operation and maintenance costs by the levy of taxes in the
amount of $0.30 per $100.00 of assessed valuation unless the
Developer or a homeowners association elects to pay all or a
portion of such amounts as provided in this Agreement. Any
operation and maintenance costs allocated to a District and not
paid by the maintenance and operation taxes levied by the District
shall be paid by the Developer or, after being provided for in a
form acceptable to the Town and agreed to the Town in writing, a
homeowners association which has assumed this obligation.
'9.3 Insurance. Each District shall obtain adequate insurance
coverage for its own property and operations and shall include the
cost of such insurance in its budget.
10. Development Riqhts.
10.1 Assiqnment of Development Riqhts. The Town acknowledges
and agrees that WCA was assigned all rights of "Developer" under
the Development Agreements with respect to the portion of Red Hawk
Canyon acquired by WCA. Subj ect to the terms and condi tions set
forth in Section 15 hereof, WCA hereby assigns to USH all rights,
pri vileges and benefi ts of "Developer" which originally inured to
the benefit of WCA's predecessors in interest, as set forth in this
Agreement and which either relate to District 1, the District 1
Property, or any future District which may be created with respect
to all or any portion of the District 1 Property. The Town
acknowledges and agrees to such assignment and recognizes USH as
"Developer" under this Agreement wi th respect to the District 1
Property.
10.2 Independent Developer Riqhts. One purpose of this
Agreement is to allow USH to proceed with the development of the
District 1 Property consistent with the agreements affecting
District 1 referenced in Section 4.2 hereof, independently of WCA
and to allow WCA to proceed with the development of the District 2
Property consistent with the agreements affecting District 2
referenced in Section 4.2 hereof, independently of USH.
Notwithstanding anything to the contrary contained anywhere in this
Agreement, the parties agree that WCA shall have the exclusive
right to exercise all rights, powers and privileges of the
"Developer" wi th respect to District 2, including wi thout
limitation, the rights, powers and privileges referenced in
Sections 5.1, 5.2(a), 5.3, 5.4,6.3,6.4,6.6,6.8,8 and 9.11
Page 29 of 42
fl.
9969
1951
hereof, and USH shall have the exclusive right to exercise all
rights, powers and privileges of the "Developer" with respect to
District 1, including without limitation, the rights, powers and
privileges referenced in Sections 5.1, 5.2(a), 5.3, 5.4, 6.3, 6.4,
6 . 6, 6 . 8 , 8 and 9. 11 he reo f . S imi 1 a r 1 y , s h 0 u 1 d e i t he r WCA 0 r US H
hereinafter desire to create additional Districts within property
owned by them, the other party shall have no right, power or
privilege to exercise any rights of "Developer" with respect
thereto. Notwithstanding anything to the contrary contained
anywhere in this Agreement, the parties agree that neither WCA nor
USH shall have any obligation to any District or District Board, or
to the Town, wi th respect to any District for which it is not
entitled to the rights, powers and privileges of the "Developer."
11. Infrastructure Plans and Specifications.
11.1 Adequacv of Infrastructure. Upon construction of the
Phase I Improvements in accordance wi th the approved plans and
specifications therefor, and a condui t system for dry utili ties
(electricity, gas, telephone and CATV) in accordance with the
requirements of the respective dry utility providers, all required
improvements set forth in the Specific Plan and the District 1
General Plan for development of the District 1 Property shall have
been satisfied. The Town acknowledges that the District 1
Developer shall construct that portion of Tortolita Parkway
included within the Phase I Improvements, in accordance with the
standards set forth in the Specific Plan and shall construct water
and sewer improvements included within the Phase I Improvements in
accordance with the standards of Tucson Water and Pima County
Wastewater Management Department, respectively.
11.2 Transfer of Plans and Specifications. WCA has developed
the plans and specifications for construction of a portion of the
Infrastructure as described on Exhibit "D" attached hereto (the
"Plans and Specifications"). WCA shall sell the Plans and
Specifications to District 2 in exchange for a promissory note made
by District 2 to the order of WCA in the form attached here as
Exhibi t "E" (the "Note"). District 2 shall then convey the Plans
and Specifications to District 1 in partial consideration of the
construction of the Phase I Improvements. District 2 shall repay
the Note in full from proceeds of bond financing or other available
monies and shall use its best efforts to repay the Note in full
from proceeds of the initial bond financing.
12. Termination and Dissolution of Districts.
12.1 District 1.
bonds to be issued
Upon payment in
by District 1 for
full of all assessment
financing the Phase I
Page 30 of 42
9969
1952
Improvements and upon the formation of a homeowners association for
the District 1 Property which agrees to assess its members for
District l's portion of the costs of operating and maintaining the
Retained Infrastructure, (i) District 1 shall transfer any property
owned by District 1 to either District 2 or a municipality, as
provided below, (ii) District 2 shall assume all obligations of
District 1 with respect to operating and maintaining the Retained
Infrastructure, and (iii) District 1 shall discharge any other
obligations which it may have incurred and take all other actions
necessary to terminate and dissolve District 1 in accordance with
the statutory prerequisites set forth in A.R.S. 5 48-724A.
Notwithstanding anything to the contrary contained in this
Agreement, except for District 1 r s obligations pertaining to the
Retained Infrastructure expressly set forth in this paragraph,
nothing in this Agreement shall be deemed to create obligations of
District 1 which would preclude its dissolution. The parties
acknowledge that A.R.S. 548-724A provides that property owned by a
community facilities district must be conveyed to a "municipality"
prior to termination of the community facilities district.
Accordingly, the parties agree that if necessary to comply with
applicable law, District 1 shall convey its property to the Town
and the Town shall, after being provided with an opinion by counsel
mutually agreed upon between the Developer and the Town that the
dissolution herein contemplated does not violate state law, convey
such ~roperty to District 2 in connection with dissolution of
District 1. District 2 shall accept such property from the Town.
Upon the agreement of such homeowners association to assess its
members, the Developer of District 1 shall have no further
obligations with respect to payment of the costs of operating and
maintaining the Retained Infrastructure.
12.2 District 2. WCA shall support all action necessary to
terminate District 2 upon completion of all infrastructure pursuant
to the General Plan for District 2, dedication of all
infrastructure owned or retained by District 2, and payment of all
bond financing, subj ect to satisfaction of all statutory
requirements for termination of District 2.
13. Contributino and Fair Share Ordinance.
Except as specifically provided in this Agreement with respect
to the Infrastructure, the parties hereto shall take no actions,
the purpose or effect of which would be to (i) cause USH, as the
owner or Developer of the District 1 Property or any portion
thereof, to pay any costs associated with the construction,
operation or maintenance of any improvements constructed by WCA or
its predecessor, District 2 or any other District hereinafter
created with respect to any portion of Red Hawk Canyon or the Other
Property and excluding the District 1 Property, or (ii) cause WCA,
Page 31 of 42
9969
1953
as the owner or Developer of the District 2 Property or any portion
thereof, to pay any costs associated with the construction,
operation or maintenance of any improvements constructed by USH,
District 1 or any other District hereinafter created with respect
to the District 1 Property and excluding any other portion of Red
Hawk Canyon or the Other Property. Wi thout limi tation, nei ther
WCA, USH nor the Town shall enter into any agreements pursuant to
any "Fair Share" or similar ordinance (as contemplated in the First
Pre-Annexation Agreement) which may have been or may hereafter be
passed by the Town, in order to cause either USH or WCA to pay for
any such costs or expenses, and neither WCA nor USH shall, directly
or indirectly, seek or consent to any attempt to cause all or any
portion of the District 1 Property or either the District 2
Property or any of the Other Property owned by WCA, respectively,
to be treated as property owned by an "adjacent owner" pursuant to
Section 7.2 of this Development Agreement. All parties hereto
acknowledge and agree that USH shall have no obligation to
contribute, directly or indirectly, towards improvements previously
constructed by WCA or its predecessor and benefiting the District
1 Property.
14. Enforcement RiGhts.
None of the Districts nor the Town shall be a third-party
beneficiary to any agreement between or obligations of WCA and USH
except as specifically set forth herein, and none of the Districts
nor the Town shall have any right or cause of action under or be
entitled to enforce any agreement between or obligation of WCA and
USH.
15. WCA and USH AGreement.
In the event that WCA is no longer obligated to convey certain
of the District 1 Property to USH due to the occurrence of a
default or event of default by USH under the WCA and USH Agreement,
then (i) the parties to this Agreement shall promptly take all
steps reasonably necessary or appropriate to delete and remove from
the boundaries of District 1 the District 1 Outparcel, and (ii) the
rights, privileges and benefits of "Developer" which relate to
District 1 and the District 1 Property shall automatically be re-
assigned to WCA and USH shall have no further rights, privileges
and benefits thereunder.
16. Additional Provisions for IGA.
16.1 Effective Date. The IGA shall become effective upon the
formation of the Districts and their ratification of this
Agreement.
Page 32 of 42
9969
1954
16.2 Term. The
until this Agreement
hereof.
IGA shall
terminates
remain in full force and effect
in accordance wi th Section 19.1
16.3 Leqal Counsel Review. The IGA shall be submitted to the
legal counsel for each party thereto prior to its execution by said
party, in order to determine whether the IGA is in proper form and
is within the powers and authority granted under the laws of the
State of Arizona to said party. Legal counsel for the Town shall
execute the attached written determination of such power and
authori ty upon the Town's execution of this Agreement. Legal
counsel for the Districts shall execute such written determination
upon formation of the Districts and ratification of this Agreement
by the Districts.
17. Notices and Filinqs.
17.1 Manner of Serving. All notices, filings, consents,
approvals and other communications provided for herein or given in
connection herewith shall be validly given, filed, made,
transmitted or served if in writing and delivered personally or
sent by registered or certified United States mail, postage
prepaid, if to:
The Town, the Town
the Town Clerk:
Council,
Town of Marana
13251 North Lon Adams Road
Marana, Arizona 85653
Attn: Town Manager
with a copy to:
Daniel J. Hochuli & Associates
3275 West Ina Road
Suite 109
Tucson, Arizona 85741-2152
Attn: Daniel J. Hochuli, Esq.
and a copy to: 0' Connor, Cavanagh, Anderson, Westover,
Killingsworth & Beshears
One East Camelback Road, Suite 1100
Phoenix, Arizona 85012-1656
Attn: Michael Cafiso, Esq.
WCA:
WCA Communities, Inc.
4320 North Campbell Avenue, Suite 226
Tucson, Arizona 85718
Attn: Mr. Ronald C. Dillon
Page 33 of 42
9969
1955
with a copy to:
Gallagher & Kennedy
2600 North Central Avenue
19th Floor
Phoenix, Arizona 85004-3020
Attn: Steven A. Betts, Esq.
USH:
u.S. Home Corporation
5970 South Greenwood Plaza
Suite 310
Englewood, Colorado 80111
Attn: Mr. Gary W. Aalen
with a copy to:
& Haga, P.C.
Mohr, Hackett, Pederson, Blakley, Randolph
Legal Notices: 10235-518
2800 N. Central Avenue
Suite 1100
Phoenix, Arizona 85004-1043
Attn: Peter N. Spiller, Esq.
or to such other addresses as either party hereto may from time to
time designate in writing and deliver in a like manner.
17.2 Mailinq Effective. Notices, filings, consents, approvals
and communication given by mail shall be deemed delivered seventy-
two (72) hours following deposit in the U.S. mail, postage prepaid
and addressed as set forth above.
18. Resolutions.
Concurrently with its execution hereof, WCA shall deliver to
the Town a certified copy of its partnership authorizations
approving this Agreement or other evidence of its authority to
enter into this Agreement, USH shall deliver to the Town a
certified copy of its corporate resolution approving this
Agreement, a certified copy of by-laws identifying the officer(s)
authorized to execute an agreement of this type, or other evidence
of its authority to enter into this Agreement, and the Town shall
deliver to WCA and USH a certified copy of its Town Council
resolution authorizing the execution hereof by the elected official
who signs the same on its behalf.
19. General.
19.1 Term. Subject to the provisions of Sections 6.7(q), 19.8
and 19.18, and if not sooner terminated concurrent with a
dissolution of all the Districts within Red Hawk Canyon as provided
in the CFD Act, this Agreement shall automatically terminate and
shall thereafter be void for all purposes on the earlier of (a) the
Page 34 of 42
9969
\956
date when (i) all of the Infrastructure has been constructed or
acquired, together with the underlying land and rights-of-way
associated therewith, if any, by one or more Districts and certain
Water/Sewer Improvements and other Infrastructure have been
dedicated to the City, the County or the Town in accordance with
the General Plan and the terms of this Agreement and when the
Districts have transferred ownership and provided for another party
to assume responsibility for operation and maintenance of all
remaining Infrastructure owned or operated and maintained by the
Districts, and (ii) all outstanding bonds and other obligations of
the Districts either have been paid in full or have been assumed by
another party or if the Districts have provided for payment of the
Districts' obligations by an irrevocable pledge of sufficient funds
to make full payment or (b) the date which is the fiftieth (50th)
anniversary of the date of this Agreement. If the parties
determine that a longer period is necessary for any reason, the
term of this Agreement may be extended by wri tten acknowledgment
executed by the parties. The Town agrees that the Town and the
Districts shall, subject to Sections 6.7(q), 19.8 and 19.18,
consent to any future termination of the Districts and of this
Agreement requested by Developer, subject to fulfillment by
Developer of all condi tions and requirements applicable to such
termination of the Districts as provided in the CFD Act.
19.2 Waiver. No delay in exercising any right or remedy shall
constitute a waiver thereof, and no waiver by the Town, any
District or any 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.
19.3 Attorneys' Fees. In the event any party hereto finds it
necessary to bring an action at law or other proceeding against any
other party to enforce any of the terms, covenants or condi tions
hereof, or by reason of any breach of default hereunder, the party
prevailing in any such action or other proceeding shall be paid all
reasonable costs and reasonable attorneys' fees by the other party,
and in the event any judgment is secured by said prevailing party,
all such costs and attorneys' fees shall be included therein, such
fees to be set by the court and not by jury.
19.4 Counteroarts. 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.
Page 35 of 42
9969
'957
19.5 Headings.
this Agreement are
control or affect
provisions hereof.
inserted for
the meaning
The descripti ve headings of the sections of
convenience only and shall
or construction of any of
not
the
19.6 Exhibits. Any exhibit attached hereto shall be deemed to
have been incorporated herein by this reference with the same force
and effect as if fully set forth in the body hereof.
19.7 Further Acts. Each of the parties hereto shall execute
and deliver all such documents and perform all such acts as
reasonably necessary, from time to time, to carry out the matters
contemplated by this Agreement. Without limiting the generality of
the foregoing, the Town shall cooperate in good faith and process
promptly any requests and applications for plat or permit approvals
or revisions, and other necessary approvals relating to the
development of Red Hawk Canyon or the Other Property by the
Developer and its successors.
19.8 Future Effect.
(a) Time Essence and Successors. Time is of the essence
of this Agreement. All of the provisions hereof shall inure to the
benefit of and be binding upon the successors and assigns of the
parties hereto. Notwithstanding the foregoing, to the extent
pe rmi tted by law, the Developer's rights hereunder may only be
assigned by a written instrument, recorded in the Official Records
of Pima County, Arizona, expressly assigning such rights, and no
obligation of the Developer (other than the payment of taxes,
assessments or charges imposed on the Developer in conjunction with
those imposed on other property owners wi thin the Districts or
others using District facili ties or property) hereunder shall be
binding upon anyone owning any right, title or interest in Red Hawk
Canyon or the Other Property unless such obligation has been
specifically assumed in wri ting or unless otherwise required by
law. In the event of a complete assignment by Developer of all
rights and obligations of Developer hereunder, Developer's
liability hereunder shall terminate effective upon the assumption
by Developer's assignee, provided that the Town has approved the
assignment to such assignee, which approval shall not unreasonably
be withheld.
(b) Termination Upon Sale to Public. It is the
intention of the parties that al though recorded, this Agreement
shall not create condi tions or exceptions to ti tIe or covenants
running with the land. Nevertheless, in order to alleviate any
concern as to the effect of this Agreement on the status of title
to any of Red Hawk Canyon or the Other Property, this Agreement
shall terminate without the execution or recordation of any further
Page 36 of 42
9969
1958
document or instrument as to any lot which has been finally
subdivided and individually (and not in "bulk") leased (for a
period of longer than one year) or sold to the purchaser or user
thereof and thereupon such lot shall be released from and no longer
be subj ect to or burdened by the provisions of this Agreement.
Nothing herein shall limit or affect the validity of documents to
be recorded other than this Agreement nor of the proposed bond
obligations and tax assessments which, when imposed upon Red Hawk
Canyon, shall run with the land in accordance with applicable laws.
19.9 No Partnership and Third Parties. It is not intended by
this Agreement to, and nothing contained in this Agreement shall,
create any partnership, joint venture or other arrangement between
the Developer, the Districts 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.
19.10 Entire Aqreement. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the
subj ect matter hereof. All prior and contemporaneous agreements,
representations and understanding of the parties, oral or written,
are hereby superseded and merged herein.
19.11 Amendment. No change or addition is to be made to
this Agreement except by a written amendment executed by the
parties hereto to which such amendment shall apply. Any amendment
not executed by all parties hereto shall only be effective as to
the parties that execute such amendment. Except as expressly
provided herein, the Town must approve any change or addition to
this Agreement. Within ten (10) days after any amendment to this
Agreement, such amendment shall be recorded by, and at the expense
of the appropriate Developer (being the Developer requesting the
amendment), in the Official Records of Pima County, Arizona.
19. 12 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 Red Hawk Canyon or the Other Property
or any General Plan; provided, however, that in connection with any
conveyance of portions of the Infrastructure as provided in this
Agreement such rights pertaining to the portions of the
Infrastructure so conveyed shall be assigned to the extent that
such rights are assignable, to the appropriate governmental
authori ty. Notwi thstanding the foregoing, a District shall be
en ti tIed to utilize all such materials described herein to the
Page 37 of 42
9969
'959
extent required for the District to construct, operate or maintain
improvements financed by the District.
19.13 Good Standinq; Authoritv. WCA represents and
warrants to the others that it is duly formed and validly existing
under the laws of Arizona. USH represents and warrants to the
other parties that it is duly formed and validly existing under the
laws of Delaware. The Town represents and warrants to the other
parties that it is an Arizona municipal corporation duly qualified
to do business in the State of Arizona and is in good standing
under applicable state laws. Each of the parties hereto represents
and warrants to the others that the individual (s) executing this
Agreement on behalf of the respective parties are authorized and
empowered to bind the party on whose behalf each such individual is
signing.
19.14 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
excuses the Town from undertaking any contractual commi tment to
pe rform any act hereunder, this Agreement shall remain in full
force and effect, but the provision requiring such action shall be
deemed to permi t the Town to take such action at its discretion.
If, however, the Town fails to take the action specified hereunder
(unless due to the default of another party), WCA shall be entitled
to terminate this Agreement with respect to the District 2
Property, and USH shall be entitled to terminate this Agreement
wi th respect to the District 1 Property. I f any applicable law or
court of competent jurisdiction excuses any Developer from
undertaking any contractual commi tment 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
such Developer to take such action at its discretion. If, however,
such Developer fails to take the action specified hereunder (unless
due to the default of another party), the Town shall be entitled to
terminate this Agreement with respect to that Developer's property.
19.15 Governinq 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. This Agreement has been negotiated
by separate legal counsel for the Town, USH, and WeA, and no party
shall be deemed to have drafted this Agreement for purposes of
construing any portion of this Agreement for or against any party.
19.16 Recordation. No later than ten (10) days after this
Agreement has been executed by the Town and the Developer, it shall
Page 38 of 42
9959
'960
be recorded
Developers,
in its entirety, by, and at the expense of,
ln the Official Records of Pima County, Arizona.
the
19.17 No Developer Representations. Except as
specifically set forth herein, nothing contained herein or in the
Third Pre-Annexation Agreement or the Specific Plan shall be deemed
to obligate the Town or the Developer to complete any part or all
of the development of the District 1 Property, the District 2
Property in accordance wi th the Specific Plan or any other plan,
and the Specific Plan shall not be deemed a representation or
warranty by the Developer of any kind whatsoever.
19.18 Indemnitv. Subject to Section 19.22 hereof, and
upon the formation of a District, the Developer shall indemnify the
Town and its agents and employees and shall hold the Town and its
agents and employees harmless from, for and against any and all
claims and costs incurred, including but not limited to reasonable
attorneys' fees and other administrative or internal costs actually
and directly incurred by the Town in connection with a challenge in
any subsequent judicial or administra ti ve proceeding to: (i) the
Town's or the District's authority to carry out the provisions of
the CFD Act and of this Agreement; (ii) the formation of the
District by the Town; or (iii) the Town's abili ty to enter into
this Agreement. This Section 19.18 shall benefit the District to
the limited extent provided in Section 5.6. The indemnity provided
herein shall survive any termination of this Agreement.
19. 19 Defaul t and Remedies. I f any party to this
Agreement is in default under any provision of this Agreement, the
non-defaul ting party shall be enti tIed, wi thout prej udice to any
other right or remedy that it may have under this Agreement, at law
or in equity, to specific performance by the defaulting party of
this Agreement, or, in the alternative, to terminate this Agreement
as if this Agreement had expired in the normal course and to
exercise any and all other remedies available to it at law or in
equity. Notwithstanding the foregoing, WeA, USH and any successor
Developer shall only have the right to terminate this Agreement as
to its own obligations and as to the obligations of any Districts
with respect to which it is the "Developer," and the Town and any
District shall only have the right to terminate this Agreement as
to its own obligations with respect to the defaulting party.
19.20 Town Aooroval. If the Town is required pursuant to this
Agreement to give its prior written approval, consent or
permission, such approval, consent or permission shall not be
unreasonably withheld or delayed.
19.21
Agreement,
Definitions. Unless otherwise defined in this
all terms used herein shall have the meaning assigned to
Page 39 of 42
9969
1961
such terms in the CFD Act so long as such interpretation does not
conflict with any other provision of this Agreement.
19.22 Further Indemnitv Provisions. With respect to all
indemnity and hold harmless provisions of this Agreement, each
Developer shall only indemnify and hold an indemnified entity or
person ("Indemnitee") harmless with respect to the specified
matters pertaining to its District and/ or bonds issued by its
District. No indemnification is given for, from or against the
negligence of an indemnified party. Indemnitees shall provide all
indemnitors with prompt written notice of any written threat or the
commencement of any action against an Indemnitee for which
indemni ty is sought and wi th respect to which indemni fied losses
are likely to occur. The indemni tor may, or if requested by an
indemnified party shall, participate therein or assume the defenses
thereof with counsel satisfactory to the indemnitor. If the
indemnitor elects to assume the defense of such action, the
indemni tor shall in wri ting keep the Indemni tee informed of all
ma terial developments and events relating to such action. The
Indemnitee shall have the right to participate in (but not control)
the defense of any such action, but the fees and expenses of
counsel for the Indemni tee shall be at its own expense except as
set forth in the following sentence. The indemnitor shall bear the
reasonable fees and expenses of counsel retained by the Indemnitee
if (i) the Indemni tee shall have retained such counsel due to
actual or potential conflicting interests (other than as arising
out of an interpretation of this Agreement) between the Indemnitee
and the indemni tor, (ii) the indemni tor shall not elect to assume
the defense of the action in a timely manner, or (iii) the
indemnitor shall not have employed counsel to represent the
Indemnitee in connection with its assumption of the defense of the
action wi thin a reasonable time after notice. Any participation
in, or the assumption of the defense of, any action by the
indemnitor shall be without prejudice to the right of the
indemnitor, and shall not be construed as a waiver of their or its
right to deny the obligation to indemnify the Indemnitee.
Indemnitees must provide all assistance reasonably requested by the
indemnitor and shall cooperate in the defense. As a condition to
an indemnitor's obligation to indemnify an Indemnitee, the
Indemni tee shall assign to the indemni tor any and all rights and
claims which the Indemni tee possesses which relate to the matter
for which indemnification is sought. The giving of notice as above
provided of an indemnifiable matter under this Agreement and the
opportuni ty to exercise the right to participate in and assume
control of the defense against such claim shall be a prerequisite
to any obligation to indemnify; provided, however, that the
Indemnitee's indemnification and hold harmless rights shall not be
forfeited by reason of a failure to give such notice or to
Page 40 of 42
9969
1962
cooperate in the defense to the extent such failure does not have
a material and adverse effect on the defense of such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
the day and year first above written.
APPROVED AS TO FORM AND AUTHORITY
The foregoing Agreement has been
reviewed by the undersigned attorney
who has determined that it is in
proper form and within the power
and authority granted under the laws
of the State of Arizona to the Town
of Marana. ~
~~~~/J. .
Daniel J. H chuli, Esq.
Attorney for Town of Marana
Date:
/27/C;S-
TOWN OF MARANA, an Arizona
municipal corporation
By Q<-~~~~ ~.
Ora Mae H rn
Mayor
, ' ' _I~ t ~ I , , , I
t (. " . / ,
WCA COMMUNITIES, INC.
an Arizona corporation
~~ ......
eCl
:' -.';'.
. (j) :', '(')
y.'nit. ''\
";.-A ' ': '
-- - I
y~ (/
(1 ." ~
. .....-. \ -:
'...
....' ~.... ,..:
BY?~ c -;;';JL...
Its Executive Vice President
Ronald C. Dillon
, '
U.S. HOME CORPORATION, a Delaware
corporation
By
- Community Development
Page 41 of 42
9969
1963
STATE OF ARIZONA
SSe
County of Pima
The foregoing document was acknowledged before me the
day of 1"AJU.AR..'f , 19~, by Ro,JALD C. D, LLO~
E~Ee. VILE P#i{E~IDE",..JT of WCA COMMUNITIES, INC., an Arizona
corporation, on behalf of said corporation.
25~
, the
~l}C.&~
Notary blic
ex ires:
Notary ublic-Anzona
Pima County
My Commission Expies 11/21/98
STATE OF ARIZONA
SSe
County of Maricopa
The foregoing instrument was acknowledged before me this
~~ day of ~ LICIt''! . 199,f. b~
~ \') t\t\.~ ~o ~ \ , the \J ,~-e -th-~'t~of U. S. HOME
CORPORATION, a Delaware corporation, on behalf of said
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
~~J-0.
Notary Public
My commission expires:
rl-97
1111111111U.
Page 42 of 42
9969
1964
---- -- ----.. .. ( -.
EXHIBIT A
LEGAL DESCRIPTION
OF COMMUNITY FACll.lTIES DISTRIcr FOR
U.S. HOMFJWESTINGHOUSE PROPERTY
OPW Project No. 94002-102
ALL OF THAT PORTION OF SECTIONS 24. 25. AND 26, TOWNSHIP 11 SOUTH,
RANGE 12 EAST, G&SRBM, PIMA co t.JNTY , ARIZONA, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 25, THENCE
NORTH 000 01' 40" WEST, ALONG THE WEST LINE OF THE SOUTHWEST
QUARTER OF SAID SECTION 25, A DISTANCE OF 1313.58' TO THE NORTHEAST
CORNER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID
SECTION 26, SAID POINT BEING THE TRUE POINT OF BEGINNING;
THENCE NORTH 000 01' 40" WEST, ALONG THE WEST LINE OF THE SOUTHWEST
QUARTER OF SAID SECTION 25, 1313.58' TO THE WEST QUARTER CORNER OF
SAID SECTION 25;
THENCE NORTH 00000' 22" WEST, ALONG THE WEST UNE OF THE NORTHWEST
QUARTER OF SAID SECTION 25, A DISTANCE OF 2634.94' TO THE NORTHWEST
CORNER OF SAID SECTION 25;
THENCE NORTH 000 01' 15" EAST, AlONG THE WEST LINE OF THE SOUTHWEST
QUARTER OF SAID SECTION 24,1725.73' TO A POINT;
THENCE NORTH 800 45' 16" EAST, 1002.05' TO A POINT;
THENCE NORTIi 630 58' 03" EAST, 1083.06' TO A POINT;
TIIENCE SOUTH 59000' 00" EAST, 442.41' TO A POINT OF CURVATURE;
TIlENCE SOUTHEASTERLY ALONG A CURVE TO THE RIGHT. WHICH HAS A
RADIUS OF 2275.00' AND A CENTRAL ANGLE OF 310 24' 50", AN ARC LENGTH
OF 1247.33' TO A POINT OF TANGENCY;
TIiENCE SOUTH 270 35' 10" EAST, 1191.34' TO A POINT OF CURVATURE;
THENCE SOUTHWESTERLY ALONG A CURVE TO THE RIGHT, WHICH HAS A
RADIUS OF 3275.00' AND A CENTRAL ANGLE OF 820 31' 42", AN ARC LENGTH
OF 4717.27' TO A POINT;
THENCE SOUTH 350 03' 28" EAST, 637.35' TO A POINT OF CURVATURE;
9969 j 965
u.s. HOMEI WESTINGHOUSE PROPERTY
OPW Project No. 94002-102
PAGE 2
THENCE SOUTHEASTERLY ALONG A CURVE TO THE LEFf" WHICH HAS A RADIUS
OF 1755.00' AND A CENTRAL ANGLE OF 040 37' 17", AN ARC LENGTH OF 141.56' TO
A POINT ON SAID CURVE FROM WHICH THE RADIUS BEARS NORTH 500 19' 15"
EAST ;
THENCE SOUTH 260 IS' 09" WEST, 393.47' TO A POINT;
TIiENCE SOUTH 11028' 33" WEST, 202~9S' TO A POINT 7S.OC), NORTH OF TIIE SOUTH
UNE OF SAID SECTION 2.5;
THENCE NORTH 890 43' 06" WEST. ALONG A UNE 75.(X)' NORTH OF AND PARALLEL
TO THE SOUTH LINE OF SAID SECTION 25. A DISTANCE OF 2952.97' TO A POINT ON
THE WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 25;
THENCE SOUTH 890 10' 36" WEST. ALONG A LINE 75.00' NORTH OF AND PARALLEL
TO THE SOUTH LINE OF TIlE SOtrmEAST QUARTER OF THE SOUTHEAST QUARTER
OF SAID SECTION 26. A DISTANCE OF 1324.74' TO A POINT ON THE WEST LINE OF
THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 26:
THENCE NORm 000 01' SO" WEST, ALONG mE WEST SIDE OF THE SOUTHEAST
QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 26. A DISTANCE OF
1244.89' TO THE NOR1lIWEST CORNER OF mE SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SAID SECTION 26;
THENCE NORTH 890 27' 00 EAST, ALONG THE NORTH IlNE OF THE SOUTHEAST
QUARTER OF THE SOUTIlEAST QUARTER OF SAID SECTION 26. A DISTANCE OF
1324.72' TO THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SAID SECTION 26. SAID POINT BEING THE TRUE POINT
OF BEGINNING;
SAID PARCEL CONTAINING 620.58 ACRES. MORE OR LESS.
eM: Ib
September 14, 1994
94002\entire2.lg1 .
~N
9969 1966
7"OTRL P.04
,..)
::r.~ ~ ~
~ 0 ~
~ ~ t. ~
~. [ ...,J
~i~ <
0'00,
:1- R=>
I
ater
:110
..~
....-;...
0 >
""'(] en
~
2~~ UJ.
0
;" z CJ . . . . . . . . . . . . . . . . . .
~p
.. ....... . . . .
"-co > . . . . . . . . . . . . .
~8 . . . " . " . . . . . . . . . . . . . .
..
~.. ~ . . . . . . . . . . . . . . . . . . .
" N ~
I ~ . . " . . . . . " . . . . . . . . .
.....
0 UJ 23 .?~. . . . . . . . . . .
N " . . . . . . . 24-
...
t ..... 28 .25. . 19
. . . . 2S
~
3C
~
.
T.P.O.B.
..........:.l. ...........
........:j: . . . . . .
...~.
"~ .
. . ..... .
. t .
. . .. .
I
1"
25
9969
, 50.
u.s.
t SECTION.36
PARCEL MAP
of
ca......UNITY FACIUTIES DISTRICT
far
HO~E / WESTINGHOUSE PROPERTY
(620.58 ACRES)
I
--; ! i 3C
38 : ~___
I
I
I
I
I
I
,
I
I 3'
I
I
I
I
I
I
I
c
~
~
~
c.;
SEC~ON
35
I';~' ':-'
PARCEL 1
EXHIBIT B
ALL THAT PORTION OF SECTION 35 OF TOWNSHIP 1 1 SOUTH, RANGE 12, EAST GILA
AND SALT RIVER .V1ERIDIAN, PIMA COUNTY, ARIZONA, MORE PARTICULARLY
DESCRIBED AS FOllOWS:
BEGINNING AT THE SOUTHEAST CORNER Of SAID SECTION 35;
THENCE NORTH 00007'05" EAST ALONG THE EAST LINE OF SAID SECTION A
DISTANCE OF 5305.49 FEET TO THE NORTHEAST CORNER THEREOf.;
THENCE SOUTH 89010'36" WEST ALONG THE NORTH LINE OF SAID SECTION 35, A
DISTANCE OF 1485.00 FEET;
THENCE SOUTH 00007'05" WEST, ^ DISTANCE OF 2652.75 FEET;
THENCE NORTH 89010'36" EAST, A DISTANCE Of 350.64 FEET;
THENCE SOUTH 00007'05" WEST, ^ DISTANCE OF 2636.06 FEET TO THE SOUTH LINE
OF SAID SECTION 35;
THENCE SOUTH 69058'51" EAST A DISTANCE OF 1 134.22 FEET TO THE TRUE POINT
OF BEGINNING.
PARCEL 2
All OF SECTIONS 24 AND 25, TOWNSHIP 1 1 SOUTH, RANGE 12 EAST, GilA AND
SALT RIVER MERIDIAN, PIMA COUNTY, ARIZONA.
EXCEPT THE FOLLOWING DESCRIBED PARCELS A, B, C, AND D.
EXCLUSION PARCEL A
BEGINNING AT THE SOUTHWEST CORNER OF SAID SECTION 25;
THENCE NORTH 00001'40" WEST, ALONG THE WEST LINE OF THE SOUTHWEST
QUARTER OF SAID SECTION 25, A DISTANCE OF 2627.15 FEET TO THE WEST
QUARTER CORNER OF SAID SECTION 25;
THENCE NORTH 00000'22" \VEST, ALO~G THE\rVEST LINE OF THE NORTH\,yESi
QU.4.RTER OF SAID SECTION 25, ,-\ f)IST ANCE OF 2634,94 FEET TO THE
NORTHWESi CORNER OF SAID SECTION 25;
THE~CE NORTH 00001 '1 5" E,~ST, ALONG THE\VEST LINE OF THE SOUTH\,yEST
QUARTER OF SAID StCTION 25, ^ DIST/\NCE Or- 1725.73 FEET;
DEe :4 '?4 :4::2
9969
1968
-"""'- --. ----
THENCE 'JORTH e0045'16" EAST, A DISTANCE OF 1 002.05 FEET;
THF.NCE NORTH 63058'03" EAST, A OIST ANCE OF 1083.06 FEET;
THENCE SOUTI t 59000'00" EAST, A DIST,-\NCE OF 442.41 fEET TO A POINT Of
CURVATURE;
THENCE SOUTHEASTERLY ALONG A CURVE TO THE RIGHT, WHICH HAS A
RADIUS or 2275.00 rErr AND A CENTRAL ANGLF. OF 31024'50", AN ARC
LENGTH OF 1247.33 FEET TO A POINT OF TANGENCY;
THENCE SOUTH 27035'10" EAST, A DISTANCE OF 1191.34 r=EET TO A POINT OF
CURVATURE;
THENCE SOUTHWESTERLY ALONG A CURVE TO THE RIGHT, WHICH HAS A
RADIUS OF 3275.00 fEET AND A CENTRAL ANGLE OF 82031 '42", AN ARC
LENGTH or- 471 7.27 FEET;
THENCE SOUTH 35003'28" EAST, A DISTANCE ()F 637.35 FEET TO A POINT OF
CURVATURE;
THENCE SOUTHEASTERLY ALONG A CURVE TO THE LEFT, WHICH HAS A
RADIUS OF 1755.00 FEET AND A CENTRAL ANGLE OF 04037'17", AN ARC
LENGTH OF 141.56 FEET TO A POINT ON SAID CURVE FROM WHICH THE
RADIUS BEARS NORTH 50019'15" EAST;
THENCE SOUTH 260' 5'09" WEST. A DISTANCE OF 393.47 FEET TO A POINT;
THENCE SOUTH 11 o28'33"WEST, A DISTANCE OF 279.38 FEET TO A POINT ON
THE SOUTH LINE ()F SAID SECTION 25;
THENCE NORTH 89043'06" WEST, ALONG THE SOUTH LINE OF SAID SECTIC)N
25, A DISTANCE OF 2937.73 FEET TO THE TRUE POINT or- BEGINNING.
EXCLUSION PARCEL B
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 24;
THENCE SOUTH 00006'46" EAST ^LONG THE WEST LINE OF THE NORTH'vVEST
,
QUARTER OF SAID SECTION 24, 1\ DISTANCE OF 1970.81 fEET;
THENCE \JORTH 30000'00" EAST, ;\ DIST/\NCE or: 721.58 r-EET;
THE~CE 'JORTH 00006'46" WEST, A DISTANCE OF 1344.45 FEET TO THE
NORTH LINE OF THE: NORTH'vVEST QUARTER OF SAID SECTION 24;
COLLlNSIJ.IIN^ CO~SULlI~C; l-NCINHKS. INC
r)ecemlJer 14, 1994, pJgc 2
9969
i969
THENCE NORTH 89046'12/1 \VEST, :'LONG THE SAID NORTH LINE A 015T ANCE
OF 362.03 FEET T() THE POINT Of BEGINNING.
EXCLUSION PARCEL C
COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 24;
THENCE SOUTH 89046', 2" EAST ALONG THE NORTH LINE OF THE
NORTHWEST (~UARTER THEREOF A DISTANCE ()F 362.03 FEET TO THE TRUE
POINT OF BEGINNING;
THENCE SOUTH 60000'00" EAST ^ DISTANCE OF 1734.26 fEET;
THENCE SOUTH 00000'00" EAST A OIST ANCE OF 877.86 FEET;
THENCE SOUTH 60(')00'00" EAST A OIST ANCE OF 900.00 FEET TO THE EAST UN E
OF THE NORTHWEST QUARTER OF SAID SECTION 24;
THENCE NORTH 00000'49" WEST ALONG SAID EAST LINE A DISTANCE or
2185.84 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER or:
SECTION 24;
THENCE NORTH 89046'13" WEST, ALONG THE NORTH LINE OF SAID
NORTHWEST QUARTER, ^ DISTANCE or: 2280.84 FEET TO THE TRUE POINT OF
BEGINNING.
EXCLUSION PARCEL D
COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 25;
THENCE NORTH 89043'06" WEST, ALONG THE SOUTH LINE OF SAID SECTION
25, A DISTANCE OF 1665.00 FEET;
THENCE NORTH 000'6'54" EAST, 75.00 FEET;
THENCE NORTH 40001 '54" EAST, 430.00 FEET, TO THE POINT OF BEGINNING;
THE~CE NORTH 65031'54" EAST, 340.00 FEET;
THENCE NORTH 46c 31 '54" EAST, 230.00 FEET;
THENCE ~ORTH 000: ()'54" EAST, 430.00 FEET;
THENCE SOUTH 59046'54" 'vVEST, 420.00 FEET;
COLLlNs/r~NA CONSUL 1 INC ..NGINlCRS. I:-.Ie.
L.)..<.~mQ~r 14, 19904, ;).1gc.3
9969
1970
-"~
I ,~_\
.-/ ./
THENCE SOUTH 27046'54" WEST, 255.00 FEET:
THENCE SOUTH 04007'43" WEST, 273.47 FEET;
THENCE SOUTH 49057'58" EAST, 30.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 5.00 ACRES MORE OR LESS.
PARCEL 3
THE SOUTH HALF OF SECTION 7, TOWNSHIP 11 SOUTH, RANGE 13 EAST, GILA AND
SALT RIVER MERIDIAN, PIMA COUNTY, ARIZONA.
PARCEL 4
THE EAST HALF OF THE SOUTHEAST QUARTER Or- SECTION 13, TOWNSI-iIP 11
SOUTH, RANGE 12 EAST, G1LA AND SALT RIVER MERIDIAN, PIMA COUNTY, ARIZONA.
PARCEL 5
SECTION 18, TOWNSHIP 11 SOUTH, RANGE 13 EAST, GilA AND SALT RIVER
MERIDIAN, PIMA COUNTY, ARIZONA.
PARCEL 6
SECTION 19 OF TOWNSHIP 11 SOUTH, RANGE 13 EAST, GILA AND SALT RIVER
MERIDIAN, PIMA COUNTY, ARIZ()NA.
EXCtPT THE SOUTHWEST QUARTER OF Tlit: SOUTHEAST QUARTER Or- THE
SOUTHWEST QUARTER THEREOF.
PARCEL 7
THE SOUTHWEST QUARTER OF SECTION 8, TOWNSHIP 1 1 SOUTH, RANGE 13 EAST,
GILA AND SALT RIVER MERIDIAN, PIMA COUNTY, ARIZONA.
EXCEPT THE NORTI-iWEST QUARTER THEREOF.
COLLlNS/rlNA CONSUl TINe eNCINLLKS. INC.
rJHt'mh",r 14, 1 ')')4. p;lgC 4
9969
1971
-.,... - , ...-.. ........
-
PARCEL 8
THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE NORTH HALF
Of THE NORTHEAST QUAKTER OF THE NORTHWEST QUARTER OF SECTION 17.
TOWNSHIP 11, SOUTH, RANGE 13 EAST, GILA AND SALT RIVER MERIDIAN, PIMA
COUNTY, ARIZONA.
EXCLUDING FROM THE ABOVE PARCELS 1 - 8 ANY PUBLICLY DEDICATED RIGHTS-OF-
WAY.
COLLINSI?INA CONSUl TINC; l:'-.lGIN(CRS. INC
Decembpr I 4. 19~. PJgc 5
996.9
1972
............
&
~
SCAI.l::"" .
. :& 3000'
8
17
EXCLUSION
PAkCu, -a
r 11 S
l....Il~
C'\,f~
-.-
~i~
I
DATe 9/27/94
9969
1973
" .
. .
JERRY A.. COLLINS
. RAUL FCO. G. PiNA. P L R..Ls..
SA V ARC T. STEVENSON Ill. P L Rl.S...
AlEXANOER O. BATT. P E
HAROLD""HAl,- EPPERSON. P.LS.
JOHN A.. LUNOBERG. P L RLS.
Collins-Pina Consulting Engineers. Inc"
630 East 9th Street. Tucson. Arizona 85705
Phone (602) 623-7980 FAX (602) 884-5278
EXHIBIT C
OTHER PROPERTY
LEGAL DESCRIPTION
(BASED ON 1987 SURVEY)
Portions of Sections 14, 15, 16, 21, 22 and 23, Township 11
South, Range 12 East, Gila and Salt River Base and Meridian,
Pima County, Arizona, more particularly described as follows:
Commencing at the Southeast corner of said Section 23, said
point being a found brass cappedGLO pipe;
Thence North 00001' 15" East, upon the East line of said
Section 23, a distance of 1320.25 feet to a capped pipe marked
"RLS 16597" at the South 1/16th corner between Sections 23 and
24, said point being the Point of" Beginning;
Thence South 89.38'31" West, upon the 1/16th line, a distance
of 2,649. 76 'feet to a capped pipe marked "RLS 16597 II at the
center South 1/16th corner of Section 23;
Thence South 89052'05" West, upon the 1/16th line, a distance
of 2,634.06 feet to a capped pipe marked "RLS 16597" at the
South 1/16th corner between Sections 22 and 23;
Thence North 89051'26" ~est upon the 1/16th line, a distance
of"2,633.48 feet to the capped pipe marked "RLS 16597" at the-
Center South 1/16th corner of Section 22; .=
Thence North 89057'25" West upon the 1/16th line, a distance
of 2,634.49 feet to a capped pipe marked "RLS 16591" at the
South 1/16th corner between Sections 21 and 22:
Thence North 00005'36" West upon the section line a distance
of 1,318.42 feet to a scribed GLO stone at the East 1/4 of
Section 21:
Thence North 89.48 134" West upon the interior 1/4 line, a
distance of 2,639.44 feet to a capped pipe marked "RLS 16597"
at the Center 1/4 of Section 21:
9959 '974
Exhlbit C - Page 1 of 5
,..
. .
Thence North 89.48'34" West upon the interior 1/4 line, a
distance of 2,637.46 teet to a scribed GLO stone at the West
1/4 of Section 21:
Thence North 00.01'56" East upon the section line, a distance
of 2,634.58 teet to a scribed GLO stone at the Northwes't
corner of Section 21;
Thence North 00.00'49" East upon the West line of Section 16,
a distance of 800.19 feet to a capped pipe marked "RLS 16591":
Thence North 45.00'00" East, a distance of 1,594.41 feet to a
capped pipe marked "RLS 16597";
Thence North 00.00'00" East, a distance of 1,015.18 feet to a
capped pipe marked "RLS 16597":
Thence Nor'th 30.00'00" East, a distance of 800.00 feet to a
capped pipe marked "RLS 16597":
Thence South 30.00'00" East, a distance of 745.00 feet to a
capped pipe marked "RLS 16597";
Thence North 60.00'00" East, a distance of 1,206.10 feet to a
capped pipe marked "RLS 16591";
Thence South 90.00'00" East, a distance of 700.00 feet to a
capped pipe marked "RLS 16597";
Thence South 30.00'00" West, a distance of 850.00 feet to a
capped pipe marked "RLS 16597";
Thence South 60.00'00" East, a distance of 250.00 feet to a
capped pipe marked "RLS 16597":
Thence North 60.00'00" East, a distance of 1,300.00 feet to a
capped pipe marked "RLS 16597":
Thence South 30.00' 00" East, a distance of 8.00. 00 feet to a
capped pipe marked "RLS .16591":
Thence South 90.00'00" East, a distance of 325.86 feet to a
capped pipe marked "RLS 16597" on the section line from which
the East 1/4 of Section 16 bears South 00.14'16" East, a
distance of 79.35 feet and is a GLO brass capped pipe;
Thence South 90.00'00" East, a distance of 229.27 feet to a
capped pipe marked "RLS 16597";
Thence North 60.00'00" East, a distance of 900.00 feet to a
capped pipe marked "RLS 16591":
Thence North 00.00'00" East, a distance of 273.90 feet to a
gagr9' Pir91~rked "RLS 16597";
Exhibit C - Page 2 of 5
!I
Thence North 45.00'00" West, a distance of 521.85 feet to a
capped pipe marked "RLS 16591";
Thence North 30.00'00" East, a distance of 1,179.16 feet to a
capped pipe marked "RLS 16591";
Thence South 30.00'00" East, a distance of 400.00 feet to a
capped pipe marked "RLS 16591";
Thence South 90.00' 00" East , a distance of 2,534.54 feet to a
capped pipe marked "RLS 16597";
Thence South 30.00'00" West, a distance of 1,469.06 feet to a
capped pipe marked "RLS 1659111;
Thence South 45.00'0011 West, a distance of 1,000.00 feet to a
capped pipe marked "RLS 16591";
Thence South 30.00'00" East, a distance of 600.00 feet to a
capped pipe marked "RLS 16591";
Thence South 90.00'00" East, a distance of 850.00 feet to a
capped pipe marked "RLS 16591";
Thence North 45.00'0011 East, a distance of 900.00 feet to a
capped pipe marked "RLS 16591";
Thence South 90.00'00" East, a distance of 100.00 feet to a
capped pipe marked "RLS 16591";
Thence South 60.00'00" East, a distance of 293.91 feet to a
capped pipe marked "RLS 16591" on the section line from which
the East 1/4 of Section 15 bears North 00.05'20" East, a
distance of 144.~5 feet and 1s a GLO brass capped pipe;
Thence South 60.00'00" East, a distance of 369.55 feet to a
capped pipe marked "RLS 16591";
Thence North 60.00'00" East, a distance of 1,065.48 feet to a
capp.ed pipe marked "RLS 16591";
Thence North 00.00'00" East, a distance of 1,500.00 feet to a
capped pipe marked "RLS 16591";
Thence North 45.00'00" East, a distance of 1,100.00 feet to a
capped pipe marked "RLS 16591";
Thence South 60.00'00" East, a distance of 2,683.43 feet to a
capped pipe marked "RLS 16591";
Thence South 45.00'00" West, a distance of 1,982.42 feet to a
capped pipe marked "RLS 16597";
9969
1 9 7 6 Exhibit C - Page 3 of 5
. .
.
Thence South 90.00'00" East, a distance of 1,902.26 feet to a
capped pipe marked "RLS 16591";
Thence South 30.00'00" West, a distance of 2,402.25 feet to a
capped pipe marked "RLS 16591";
Thence South 30.21'17" East, a distance of 298.00 feet to a
capped pipe marked "RLS 16597" on the section line from which
the South 1/4 of Section 14 bears South 89.32' 18'" West, a
distance of 1,164.39 feet and is a GLO brass capped pipe:
Thence South 30.00'00" East, a distance of 1,900.00 feet to a
capped pipe marked "RLS 16597";
Thence South 60.00'00" East, a distance of 614.87 feet to a
capped pipe marked "RLS 16591" upon the East line of Section
23;
Thence South 00"06'46" East upon the section line, a distance
of 672.05 feet to the calculated .East 1/4 corner of Section
23;
Thence South 00.01'15" West upon the section line, a distance
of 1,320.25 feet to a capped pipe marked "RLS 16591" at the
South 1/16th between Sections 23 and 24, said point being the
Poi~t of Beginning;
Above described land contains 102,264,428 square feet or
2,341.1 acres, more or less.
9959
1977
Exhibit C - Page 4 of 5
I
"Z" ;1Li ...-
,'.
o I
I
I I
.\) I : ::
.,. -,-. ...
I ~ -1'
... ... .-
I ... I
: ~
:': ... ~ .-
I I
\ ~
). ~ .....
I I
! I
t 1'-
: t
:r :'t.-
I I
I I
I ~
I ......
~ 1'-
I ;,-...
I ~
I ~
~ ~.-
I
,
to
:. .-.
I
.
h
.. .-
"
I
"'-
:1
=:::::--
!I~
"- It
I cl.I~~; ~
pi" Ii ~_..~
II' , I \ i ._ :~
I, \ ;
I
..- '1
I
t
i .
,
.
~. ..~ ..
I I
I I
I I
I !
.' ' , -. w- .
, I
, I
I ,
I
~ .
I ,
,
I I
I ,
I
a ,
I
I
I
I I
I
.~ .....
I
I .
I I
I I
I
- R
i
. : -J- & · ·
, I ~I: , I I
..- - ~ ---- t -. .-- ~~-:. -~. ~-.-:."'!.:'" -':.'
I. I' 1 I - ,~':
, ,,: I I ,/;
, I , , l.!"
~ ......f----'-- --* /;.:r
I I I ,":" ,
, I , ,I" I
I f-l' (I
--. .
I
I
I
I
I
.,
I
I
. ..
I ; ~
~I"-
F
1"-
tTl
X
;J'"
~
0-
~
("t
I
.., I
::::: .,
n
'"d
~
IJQ
ro
U1
o
H'\
U1
o'
=~
I' ~~ .--
:~~~ ..... .
.~ ~
~~ ,-
>> & i
.
-,,:z .
>- ~ . b. .
;
,
I
I
- - --'It-.
I
1
I
,
,,- -.. ::
I
I
I
1
,.
I
I
If.
a
1
I
I: '
:.
:t:
I
I
I
1
.. .- ..,~ ,----
. -a'-
I i ~I:
.
,
I
I
,
1;"
I
I
I
,.
...
I
I
&
.
I
I
i
9959
,978
cr
I
.,
..
I
I
H
I
I
I
.
I
I
,
"
I
I
I
II
. ..--
~
a
I
.
--
I
,
,
:&
I
1
I
..
...
I
I
I
','
,.
I
,
,
:~
I
i
:~ ..
I ,
, I
I I
I), II
..
I I
I ,
I 1
I I
., I'
t" I_
I I
I
I
" ~
. ,
I 1
. ~
M
1
I
I J.
I.' .~
I .1
, I
I J.
:~ If'
I I
I ,
~ ..
~~ ..
...
I
:. ,.
II
i .
,. "
II ,.
a l;
- -.
: I
..
.
. .
OPW &~IA1FS, INC
Engineering. Survevfng & Planning
EXHIBIT "D"
6383 East Grant Road
Tucson, Arizona 85715
Phone: (602) 296-8544
FAX (602) 296-2356
~I
January 25, 1995
-~~
::r-~;rqw;-....~~~Jm;t~~SS~"Il'\)O
Mr. Ron Dillon
Westinghouse Communities
4320 N. Campbell, #226
Tucson, AZ 85718
Re: Red Hawk Canyon Offsite Water Systems
OPW Project No. 94002-110
Dear Mr. Dillon:
At the request of Randy Cassidy, the following are the offsite improvement plans necessary to
provide water to the subject property. All were prepared by the WLB Group and are currently
being reviewed for approval by Tucson Water.
1. Tortolita Mountain Properties Transmission Mains - Tucson Water Plan #2-699-098-89,
Sheets 1-34 (at this time).
2. Thomydale "e" to "E" Zone Booster Station - Tucson Water Plan #2-732-167-89, Sheets
1-15 (at this time).
3. Tortolita Mountain "E" Zone Reservoir Plans - Tucson Water Plan #2-733-168-89, Sheets
1-22 (at this time).
Additionally, Greiner Inc. is redesigning approximately 3/4 miles of the Tran~mi~sion Main
system south of the 2MG reservoir site. Information on that design is not known at this time.
If you have any questions, please call.
Sincerely,
OPW & Associates, Inc.
~WaM
J
Tim Walsh, P.E.
TW/lb
94002\rdO 125 .ltr
9969
1979
Exhibit "E"
NOTE
, Arizona
, 199_
For value received, the undersigned, REDHA WK CANYON COMMUNITY
FACILITIES DISTRICT NO.2 (the "Obligor"), promises to pay to the order of WCA
COMMUNITIES, INC. or its assigns (collectively the "Holder"), the outstanding principal
amount hereof in a sum of $ with interest on the unpaid principal amount from the
date hereof, as hereinafter provided.
This Note is issued for the purpose of evidencing and securing the Borrower's
obligation to repay the holder in accordance with the terms and provisions of that certain
Amended and Restated Development Agreement and Intergovernmental Agreement dated
(the "Development Agreement").
1. The outstanding principal amount hereof shall be the aggregate of all actual
costs incurred for development of the plans and specifications listed on Exhibit D of the
Development Agreement.
2. Interest shall be charged on the outstanding principal amount and shall be
computed on the basis of a 360-day year and the actual number of days elapsed and, subject to
adjustment as hereinafter described, shall be payable at an annual rate equal to eight percent.
3. Principal and interest are payable solely from bond proceeds, if and when,
such proceeds are received by the Borrower.
4. It is agreed that time is of the essence of this Note.
5. The Holder shall have all rights and remedies to enforce the payment of
this Note, and such rights and remedies shall be cumulative and concurrent and may be pursued
singly, successively, or together against the Borrower and any other funds held by the Holder
for the payment hereof or otherwise at the sole discretion of the Holder.
6. This Note shall be construed according to and governed by the internal
laws of the State of Arizona without regard to conflicts of laws provisions.
IN WITNESS WHEREOF, the Borrower has executed this Note as of the date
first hereinabove written.
REDHA WK CANYON COMMUNITY
FACILITIES DISTRICT NO.2
By
Its
SWR R2726. 1 1/24/95
9969
1980