HomeMy WebLinkAboutResolution 2002-036 agreement with kb home tucson inc for construction of water facilitiesMARANA RESOLUTION NO. 2002-36
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA,
AUTHORIZING THE APPROVAL AND EXECUTION OF A DEVELOPMENT AGREEMENT
DB~E.TWEEN THE TOWN OF MARANA AND THE BCI~' GROUP
LVELOPMENT OF THE AREA KNOWN AS T~4~ .......... , LLC, FOR THE
~ ~ LUCAS DEVELOPMENT.
WHEREAS, the Mayor and Council of the Town of Marana have approved the final block
plat for the San Lucas Development, located east of I-10 and north of Tangerine Road; and
WHEREAS, as a condition of the rezoning of the property, the Town of Marana and BCW,
LLC, the developer of the project, are required to enter into a Development Agreement to formalize
various development requirements; and
WHEREAS, pursuant to A.R.S. § 9~500.05, the Townis authorized to enter into development
agreements relating to property in the Town; and
WHEREAS, the staff of the Town has prepared the Development Agreement attached hereto
as Exhibit "A" and incorporated herein by this reference; and
WHEREAS, the attached Development Agreement provides assurances that the development
of the 293 acres of the San Lucas Development conforms to the rules and regulations of the
Northwest Marana Area Plan, rezoning conditions, Preliminary and Final Plats, and the Marana
Development Code, establishes two sunset provision dates, addresses on-site infrastructure
requirements including water utilities, wastewater, parks, fire protection, and school sites, and
addresses vehicular access including a Marana Road Extension, an alternate emergency access, the
Marana Road Railroad Crossing, and construction traffic; and
WHEREAS, the Mayor and Council have determined that the terms of the Development
Agreement are unobjectionable and do not conflict with the Town's general plan or with the interests
of the Town or its residents; and
WHEREAS, the Mayor and Council have determined that approval of the Development
Agreement is in the best interests of the Town and its residents.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana,
Arizona, that the Development Agreement, attached hereto as Exhibit "A" and incorporated herein
by this reference, is hereby approved.
BE IT FURTHER RESOLVED by the Mayor and Council that the Mayor is hereby
authorized to execute the Development Agreement on behalf of the Town of Marana.
Marana, Arizona Resolution No. 2002-36
Page 1 of 2
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
19th day of March, 2002.
ATTEST:
'~celyn ~ffl~ntz -
Town Cl"erk
APPROVED AS~TOfi,~:
aniel J. Hochuli, Esq.
As Town Attorney and not personally
Marana, Arizona Resolution No. 2002-36
Page 2 of 2
Exhibit A
Development Agreement
Marana, Arizona Resolution No. 2002-36
Page 3 of 2
San Lucas Development Agreement
Town of Marana
BCIF Group, LLC
Development Agreement
Town of Marana/FC1F Group, LLC i
Developmenl Plans
1.1 Development Review
1.2 Zoning and Plat Conditions
1.3 Amendments to Agreement
1.4 Archaeological Preservation
1.5 Review of Building Permits
On-Site Infrastructure
2.1 Water Utilities
2.2 Wastewater
2.2.1 Sewer Basin Study
2.2.2 Sewer Concept Plan
2.2.3 Sewer Phasing Plan
2.2.4 Payment for Oversizing
2.3 Recreation Facilities
2.3.1 Marana Road Linear Park
2.3.2 Riparian Area Linear Park
2.3.3 Onsite Public Recreational Facilities
2.3.4 Onsite Private Recreational Facilities
2.4 Fire Protection
2.5 School/Park Site
Vehicular Access
3.1 Marana Road Extension
3.2 Alternate Emergency Access
3.3 Phasing Plan
Marana Road Railroad Crossing
4.1 Payment for Oversizing
5. Construction Traffic
Cooperation and Alternative Dispute Resolution
6.1 Appointment of Representatives
6.2 Timing
6.3 Default; Remedies
Protected Development Rights
7.1 Purpose
7.2 Future Impact Fees
Notices and Filings
8. I Manner of Serving
General Terms and Conditions
9.1 Term
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Development A~m-eement
To~w~ of Marana/FCIF Group, LLC
9.2 Waiver
9.3 Attorney's Fees
9.4 Counterparts
9.5 Headings and Recitals
9.6 Exhibits
9.7 Further Acts
9.8 Future Effect
9.8.1 Time Essence and Successors
9.8.2 Termination Upon Sale to Public
9.9 No Partnership and Third Parties
9.10 Other Instruments
9.11 Imposition of Duty By Law
9.12 Entire Agreement
9.13 Amendment
9.14 Names and Plans
9.15 Good Standing; Authority
9.! 6 Severability
9.17 Governing Law/Arbitraton
9.18 Recordation
9.19 No Developer Representations
9.20 Approval
9.21 Force Majeure
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Development Agreement
Town of Marana/FCIF Group, LLC ii
EXHIBIT LIST
Map of Property
Legal Description of Property
Rezoning Conditions
Development Agreement
Town of Marana]FCIF Group, LLC iii
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (hereinafter" ,,
Agreement ) is made by
and between the TOWN OF MARANA, an Arizona municipal corporation (hereinafter
"Town") and BCIF Group, LLC, an Arizona Limited Liability Company (hereinafter
"Developer").
RECITALS
A. The Developer is the owner of approximately 183 acres of real property, and is
the optionor of 110 acres of real property, within the corporate limits of the Town, as
depicted on the map attached hereto as Exhibit "A" and legally described on Exhibit "B"
(hereinafter referred to as the "Property").
B. The Developer intends to improve the Property for the following uses:
uses i) on approximately 228 acres of the Property: R6, R7, and R8 residential
ii) on approximately 11 acres of the Property: CO commercial uses, which
shall not be developed at the R-6 standards in satisfaction of Rezoning condition #9
iii) on approximately 15 acres of the Property VC: commercial uses, which
shall not be developed at the R-6 standards in satisfaction of Rezoning condition #8
iv) on approximately 29 acres of the Property: open space and parks
v) on approximately I0 acres of the Property: a school site
and related common improvements. All of the preceding uses of the Property are
collectively identified as the San Lucas Master Plan ("San Lucas").
C. The future development of the Property shall be subject to the rules and
regulatipns applicable to the Property, including but not limited to the following:
2) Northwest Marana Area Plan ("NMAP"),
ii) the rezoning conditions ("Rezoning"), attached as Exhibit C,
iii) conditions of the Developer's preliminary block plat (the Prehmmary
Plat"), " ' '
iv) the final block plat for San Lucas (the "Final Plat"), and
v) the Marana Development Code (including the written roles, regulations,
procedures, and other policies relating to development of land, whether adopted by the
Mayor and Council or by Town Staff) (herei.nalter the "MDC"), collectively establishing,
among other things, the type of land uses, location, density and intensity of such land
uses, and community character of the Property, and providing for, among other things,
the development of a variety of housing, cormnercial and recreation/open space
opportunities.
D. The Developer and the Town desire that the Property shall be developed in
accordance with the NMAP, Rezoning, Preliminary Plat, Final Plat, and MDC, as
amplified and supplemented by this Agreement. The parties acknowledge that this
Agreement is intended to be consistent with the foregoing, and operates to the benefit of
the Town, the Developer, and the public.
Foxx~l of Marana/FCIF Group, LLC 1
E. The parties understand and acknowledge that this Agreement is a eve opment
Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. 9-
500.05, in order to facilitate the development of the Property by providing for, among
other things, conditions, terms, restrictions and requirements for the construction and
installation of public infrastructure as more particularly described herein, the phasing
over time of construction or development on the Property, and other matters related to tile
development of the Property.
F. The Town and the Developer acknowledge that the development of the Property
pL~rsuant to this Agreement will result in planning and economic benefits to tile Town and
/ts residents by, among other things, requiring development of the Property consistent
with the NMAP, Rezoning, Preliminary Plat, Final Plat, and MDC.
G. The Town and the Developer acknowledge that the Rezoning ordinance provides
that the Property will revert to its previous zoning, in the event that (i) a block plat is not
approved by the Town Council and recorded by December 19, 2003, or (ii) a sewer
system for the Property is not approved by Pima County and Town, designed, and
installed and completed by December 19, 2005. The Town and the Developer also
acknowledge that in the event the Rezoning is reverted for either of these reasons, or any
other reason, this Agreement shall automatically terminate and be of no further force and
effect.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promise and agreement set forth herein, the parties hereto state, confirm and agree as
follows:
AGREEMENT
Development Plang.
I.I Development Review. Prior to the approval and execution of this
Agreement, the Town has approved the Rezoning. The Property shall be developed in
accordance with this Agreement, which, in conjunction with the Preliminary Plat, Final
Plat, MDC and NMAP, set forth the basic land uses, densities and intensities of such land
uses as presently authorized for the Property and development regulations related thereto.
Upon compliance by the Developer with the applicable development review and approval
procedures as set forth in the NMAP and MDC and other Town Ordinances, rules,
regulations and state laws, the Town agrees to approve or issue such permits, plans,
specifications, and/or plats of or for the Property as may be requested by the Developer
and which are consistent with the NMAP, Rezoning, Preliminary Plat, Final Plat, and
MDC.
1.2 Zoning and Plat Conditions. The Developer agrees to fulfill all conditions
outlined in the Rezoning, Preliminary Plat, and Final Plat for the Property.
Development Agreement
To,sm of Mar~na/FCIF Group, LLC 2
1.3 Amendments to Agreement. The Town and the Developer agree to
cooperate and in good faith pursue any amendments to this Agreement that are
reasonably necessary to accomplish the goals expressed in the NMAP, Rezoning,
Preliminary Plat, Final Plat, and MDC. Any amendment to the Agreement shall be
approved and recorded pursuant to Section 9.13 hereof.
1.4 Archaeological Preservation. In satisfaction of Rezoning condition 12 of
the Rezoning, the Developer shall take suitable measures to recover significant
archaeological materials pursuant to the recommendation of a state-certified
archaeologist, and the Developer shall consult such persons and the State Historic
Preservation Office and Arizona State Museum before any ground disturbances are made.
The Developer shall work with the Arizona State Museum to implement an acceptable
recovery program pursuant to state law in the event that any burial remains are
discovered during the project development.
1.5 Review of Building Perm/ts. All residential dwelling units shall be site
built. Notwithstanding section 9.8.1 and 9.8.2 and other provisions hereof, this
subsection shall apply to all land within the Property, whether sold in bulk or
individually, whether subdivided or not, and shall apply to each and every lot and shall
run with the land.
2. On-Site Infrastructure
2.1 Water Utilities. The parties will pursue a Water Service Agreement which
sets forth the various agreements of the parties relating to, among other things, the
interconnection and main extension from the existing water system, and the development,
construction, dedication, ownership, and design of the water system, including necessary
storage and well(s) necessary to serve the Property. This Water Service Agreement shall
be entered into prior to the approval of the Final Plat for the Property. The Town will act
on the Water Service Agreement within a reasonable time.
2.2 Wastewater. In satisfaction of Rezoning condition g4, the Developer shall
secure the necessary sewer system to serve the Property by December 19, 2005. The
sewer system shall be in conformance with, and subject to, the requirements of Pima
County Wastewater Management and the Town, and shall be designed and constructed at
sole cost of the Developer, as follows:
2.2.1 Sewer Basin Study. The Developer shall cause to be prepared, at
Developer's sole expense, a sewer basin study including the Property, prior to recordation
of the Block Plat.
2.2.2 Sewer Concept Plan. The Developer shall cause to be prepared, at
Developer's sole expense, a sewer concept plan based on the results of the Sewer Basin
Study, prior to recordation of the Block Plat. The sewer concept plan shall define the
necessary wastewater conveyance scheme to connect to the existing Pima County
Wastewater system in a location acceptable to the Town and Pima County. The sewer
Dex elopment Agreement
Town of Marana/FCIF Group, LLC 3
concept plan shall also identify the necessary onsite conveyance scheme to provide sewer
connection to all of the platted blocks within the Property.
.2.2.3_ Sewer Phasin Plan. Developer shall cause to be prepared, at
Developer's sole expense, a sewer phasing plan, based upon the concept plan identified
in section 2.2.2, which is acceptable to Pima County Wastewater Management and the
Town.
2.2..__~4 payment for Oversizing. The parties acknowledge that the
Developer will be benefiting from oversized sewer facilities that were constructed in
exchange for discounted sewer connection fees. This project will be subject to payment
of an additional connection fee to Pima County Wastewater Management in the sum of
five hundred ($500.00) dollars per unit, to be paid at the time of issuance of each building
permit. In the event this project constructs substantial, permanent, offsite facilities which
will provide benefit to other properties, credit for this improvement, in the amount of the
marginal cost of oversizing, may be applied to the additional connection fee. The Town
shall require that all development agreements for property that use this oversized
infrastructure shall provide for a payment of not less than five hundred ($500.00) dollars
per unit, to be paid to Pima County Wastewater Management for regional collector
development.
2.3 Recreation Facilities. In satisfaction of Rezoning condition #11, to serve
the residents of the Town of Marana within and outside of San Lucas, the Developer shall
provide the necessary park sites, as follows:
2.3.1 Marana Road Linear Park. The Developer shall cause to be
constructed a linear public trail within the 160 ft. fight of way of Cochie Canyon Trail,
hereinafter Marana Road, traversing the Property from east to west, including a 14 ft.
minimum width asphalt paved walk, pedestrian benches, irrigated landscaping including
shade trees, and the appropriate safety elements, to be maintained by the Town of Marana
Parks System, provided, however, that if the Marana Road Linear Park is used for onsite
retention of site-generated flows, maintenance shall be the obligation of the San Lucas
Homeowners Association. Construction of each of the Marana Road Linear Park
segments will be completed within 90 days of final inspection and acceptance of the
corresponding Marana Road segment, subject to the Phasing Plan defined in paragraph
3.3. The construction of these improvements shall be approved by the Town Parks &
Recreation Director and Department of Development Services.
2.3.2 Riparian Area Linear Park. The Developer shall cause to be
constructed a linear private trail within the area designated as "Riparian Area", traversing
the Property from east to west, which is generally located along the southern portion of
the Property, including a natural, winding trail surfaced with stabilized soil or
decomposed granite, clear of vegetative obstruction, pedestrian benches, and non-
irrigated native landscaping including trees, to be maintained by the San Lucas Master
Homeowner's Association. Construction of each of the Riparian Area Linear Park
Town of Marana/FCIF Group, LLC 4
segments w/Il be completed within 90 days of final inspection and acceptance of the
corresponding residential block.
.2.3.3 Onsite Public Recreational Facilities. The Developer shall
dedicate and deed to t~e Town a minimum of thirteen and one half (13.5) developable
acres of the 29 acres of land located in the southwest comer of the Property and outside
of the Riparian Area Linear Park. On the dedicated park site the Developer shall
construct a minimum thirteen and one half (13.5) acres of active use recreational
facilities, to public park standards and acceptable to the Town. The site and facility
design of this park shall be subject to approval by the Town Parks & Recreation Director
and Development Services Director. The Developer's cost for the design and
construction of this park shall be equal to, or exceed, $839,000.00. The Developer shall
proceed expeditiously with construction of the Park, and shall make reasonable progress
to timely complete the park improvements as set forth herein. Fifty (50%) percent of the
park improvements shall be completed by issuance of the 420th building permit, and the
park improvements shall be fully completed within eighteen (18) months of the issuance
of the 600th building permit.
2.3.3.1 As an alternative to the park improvements set forth in
section 2.3.3, the Developer may elect to pay an "in-lieu fee" as provided in this section.
Before the approval of the first residential plat, the Developer must agree to either: (i)
payment of an in-lieu fee to the Town in the amount of One Thousand ($1,000.00) dollars
per residential lot, or (ii) construction of the park as provided in paragraph 2.3.3 above.
Such in-lieu fees shall be applied toward construction of improvements by the Town
within the 13.5 acre dedicated park site, and construction of such park improvements
shall commence within six (6) months of issuance of the building permit for the six
hundredth (600) residence, and shall be completed within eighteen (18) months
thereafter. Payment of such in-lieu fees or construction of such park improvements shall
offset any fees imposed by the Town for public recreation facilities. If more than 13.5
acres is deeded to the Town and accepted by Town staff (hereinafter "Additional Park
Land"), all such Additional Park Land shall be valued at $25,000.00 per acre, and the in-
lieu fee shall be reduced by a prorated amount equal to the total value of the Additional
Park Land. By way of example, if one acre of Additional Park Land is deeded and
accepted by the Town, then each in-lieu fee shall be reduced such that the total in-lieu
fees received by the Town is reduced by $25,000.00. Payment of the in-lieu fees for a
residential lot, if so elected by the Developer, shall be required at the issuance of the
resident/al building permit.
2.3.4 Onsite Private Recreational Facilities. Within each platted block,
private recreational facilities shall be constructed on a site of not less than 185 square feet
per unit. Site and facility design shall be approved by the Town Parks & Recreation '
Director and Department of Development Services.
2.4 Fire Protection. Prior to issuance of the certificate of occupancy for any
dwelling unit, the Developer shall have completed the process of having the Property
annexed into a fire district. The fire district must be capable of providing fire prevention,
Development Agreement
Town of Mamna/FCIF Group, LLC 5
fire suppression and other emergency services, and must be approved by the Town, and
such approval shall not be unreasonably withheld.
2.5 School/Park Site. In satisfaction of Rezoning condition #10, the
Developer shall reserve 10 acres of land located in the north-central portion of the
Property for purchase by the State of Arizona ("State") for the Marana Unified School
District (the "School District"). The school site shall be delineated at the time of Town
approval of the Preliminary Plat. At the time of the Town approval of the final block
plat, this I O-acre site shall be deeded to a non-profit community trust to be designated by
the Town of Marana. The 10-acre site will be deeded for education or park and
recreation purposes under the terms of this agreement. Such site shall be acceptable to
the Town's Parks and Recreation Director, the School District and the Town's
Development Services Administrator. In the event the school site is not sold to the State
or deeded to the School District within twenty-five (25) years of the date of this
Agreement, said land will revert to park and recreation purposes to be used by the Town
of Marana for public recreational purposes.
Vehicular _Access.
3.1 Marana Road Extension. Under the Rezoning and the Town's NMAP,
primary vehicular access to San Lucas is to be provided by extending Marana Road from
the existing terminus east across the 1-10 Frontage Road and the Union Pacific Railroad
tracks, and continuing east through the Hopkins' property, connecting with Cochie
Canyon Trail at the western boundary of San Lucas (hereinafter "Marana Road
Extension"). The Developer shall dedicate land and cause to be constructed, prior to
occupancy of the first residential unit, the Marana Road Extension in accordance with
current road standards, consisting of a two lane road constructed according to standard
pavement design practice. Upon Developer's request, the Town shall, to the extent
provided by law, exerclse its power of eminent domain to acquire any right-of-way
necessary for the construction of the Marana Road Extension, and Developer shall pay all
costs of such condemnation, including but not limited to attorneys' fees, court costs,
damages, severance damages, and proceeds to reimburse the property owner for the loss
of land.
3.2 Alternate Emergency Access. A secondary emergency vehicular access to
San Lucas is to be established to serve San Lucas. In satisfaction ofrezoning conditions
#14 and #15, the Developer shall dedicate land and cause to be constructed a graded chip-
seal paved road prior to occupancy of the first residential unit by extending Postvale
Road north along the east property line of the Property to meet Cochie Canyon Trail
within the San Lucas Project boundary.
3.3 Phasing Plan. The portion of the Marana Road Extension which lies east
of the western boundary of the Property shall be constructed in phases, such that access
will be paved to each residential unit prior to occupancy of that residential unit.
Town of Marana/FCIF Group, LLC 6
4. Marana Road Railroad Crossing. In satisfaction of Rezoning condition #7, a four
(4) lane crossing of the Union Pacific railroad tracks is to be constructed by the
Developer prior to occupancy of the first residential unit (the "UPRR Crossing"). The
Town shall be applicant to Union Pacific Railroad, although all costs of acquisition,
approval, design, condemnation and construction of the UPRR Crossing shall be paid by
the Developer. Upon Developer's request, the Town shall, to the extent provided by law,
exercise its power of eminent domain to acquire any right-of-way necessary for the
construction of the UPRR Crossing, and Developer shall pay all costs of such
condemnation, including but not limited to attorneys' fees, court costs, damages,
severance damages, and proceeds to reimburse the property owner for the loss of land.
The Developer shall provide the Town of Marana all supporting documentation required
for the application to UPRR. Prior to submittal, the Developer will forward draft
documents to the Town for review. The Town will respond to the draft within 30 days of
receipt.
4.1 Payment for Oversizing. The parties acknowledge that the Town will be
benefiting from a four (4) lane railroad crossing while only two (2) lanes are required for
the amount of traffic generated by this project. To the extent permitted by law, the Town
shall join in paying UPRR the cost of construction performed by UPRR, or materials
supplied by UPRR, in an amount equal to the marginal cost of oversizing.
Construction Traffic Construction traffic for this project may use Cochie Canyon
Trail, Marana Road, or Postvale Road.
6. Cooperation and Alternative Dispute Resolution,.
6.1 Appointment of Representatives. To further the corrumitment of the
parties to cooperate in the progress of the Development, the Town and the Developer
each shall designate and appoint a representative to act as a liaison between the Town and
its various departments and the Developer. The initial representative for the Town
(hereinafter "Town Representative") shall be the Development Services Director, and the
initial representative for the Developer shall be Robert P. Zammit or a replacement to be
selected by the Developer. The representatives shall be available at all reasonable times
to discuss and review the performance of the parties to this Agreement and the
development of the Property.
6.2 Timing. The Town acknowledges the necessity for prompt review by the
Town of all plans and other materials (hereinafter "Submitted Materials") submitted by
the Developer to the Town hereunder or pursuant to any zoning procedure, permit
procedure, or other governmental procedure pertaining to the development of the
Property and agrees to use its best efforts to accomplish such prompt review of the
Submitted Materials whenever possible.
6.3 Default; Remedies. If either party hereto defaults (the "Defaulting Party")
with respect to any of such party's obligations hereunder, then the other party hereto (the
Non-Defaulting Party ) shall be entitled to give written notice in the manner prescribed
Development Agreement
Town of Marana/FCIF Group, LLC 7
in Section 8.1 to the Defaulting Party, which notice shall state the nature of the default
claimed and make demand that such default be corrected. The Defaulting Party shall
then have (i) twenty (20) days from the date of such notice within which to correct such
default if it can reasonably be corrected by the payment of money, or (ii) thirty (30) days
from the date of such notice to cure such default if action other than the payment of
money is reasonably required, or if any such non-monetary default cannot reasonably be
cured within sixty (60) days, then such longer period as may be reasonably required,
provided and so long as such cure is promptly commenced within such period and
thereafter diligently prosecuted to completion. If any such default is not cured within the
applicable time period(s) set forth above in this Section 6.4, then the Non-Defaulting
Party shall be entitled to commence an action at law or in equity in the Pima County
Superior Court. The parties hereto agree that due to the size, nature and scope of the
Development, and due to the fact that it may not be practical or possible to restore the
Property to the condition which existed prior to Developer's development and
improvement work, once implementation of this Agreement has begun, money damages
and remedies at law will likely be inadequate and that specific performance will likely be
appropriate for the enforcement of this Agreement. This Section 6.4 shall not limit any
other rights, remedies, or causes of action that either party may have at/aw or in equity.
7~_. Protected Development Rights.
7.1 Purpose One of the purposes of this Agreement is to establish legally
protected rights for the development of the Property in a manner which is consistent with
the NMAP, MDC, Preliminary Plat, Rezoning, Final Plat, and this Agreement, in order to
ensure reasonable certainty, stability and fairness to the Developer over the term of this
Agreement. Toward this end, Developer and Town agree that the zoning designations
granted by the Zoning Ordinance shall remain in effect and shall not be changed without
the agreement of the Developer for the term of this Agreement, unless an automatic
reversion occurs pursuant to the Zoning Ordinance.
7.2 Future Impact Fees. In consideration for the roadway described in
paragraphs 3.1, 3.2, and 3.3, sewer described in paragraph 2.2, 2.2.1, 2.2.2, and 2.2.3,
water described in paragraph 2.1, and recreational facilities described in paragraphs 2.3,
2.3.1, 2.3.2, 2.3.3, 2.3.3.1, and 2.3.4, and irrigation improvements funded and/or
constructed by Developer pursuant to this Agreement, in the event the Town adopts an
impact fee for the same infrastrncture for which Developer has contributed land and/or
made improvements and/or paid a voluntary fee pursuant to this Agreement, Developer
shall be entitled to a credit for such contributions as set forth in A.R.S. § 9-463.05.
8. Notices and Filings.
8.1 Manner of Serving. Ail notices, filings, consents, approvals and other
communications provided for herein or given in connection herewith shall be validly
given, filed, made, transmitted or served if in writing and delivered personally or sent by
registered or certified United States mail, postage prepaid, if to (or to such other
Development Agreement
Town of Marana/FCIF Group, LLC 8
addresses as either party hereto may from time to time designate in writing and deliver in
a like manner):
The Town:
Town of Marana
Town Manager
13251 N. Lon Adams Road
Marana, Arizona 85653
With a copy to:
Daniel J. Hochuli, Esq.
Hochuli & Benavidez, P.C.
220 E. Wetmore Road, Suite 110
Tucson, Arizona 85705
The Developer:
Robert P. Zammit
BC~ Group, LLC
5445 E. Corte Vista Montanosa
Tucson, Arizona 85705
9. General Terms and Conditions.
9.1 Term. This Agreement shall become effective upon its execution by all
the parties and the taking effect of a duly adopted resolution of the Town's governing
body approving the Agreement (the "Effective Date"). The term of the Agreement shall
commence upon the Effective Date and, unless sooner terminated by the mutual consent
of the parties, shall automatically terminate and shall thereafter be void for all purposes
twenty (20) years from the date of the Agreement. If the parties determine that a longer
period is necessary for any reason, the term of this Agreement may be extended by
written acknowledgment executed by the parties.
9.2 Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver by the Town or the Developer of the breach of any
covenant of this Agreement shall be construed as a waiver of any preceding or
succeeding breach of the same or any other covenant or condition of this Agreement.
9.3 Attorney's Fees. In the event any party hereto finds it necessary to bring
an action at law or other proceeding against any other party to enforce any of the terms,
covenants or conditions hereof, or by reason of any breach of default hereunder, the party
prevailing in any such action or other proceeding shall be paid all reasonable costs and
reasonable attorneys' fees by the other party, all such costs and attorneys' fees shall be
included therein, such fees to be set by the court and not by.jury.
Development Agreement
Town of Marana/FCIF Group, LLC 9
9.4 ~. 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.
9.5 Headings and Recitals. The descriptive headings of the sections of this
Agreement are inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof. The Recitals set forth at the beginning of
this Agreement are hereby acknowledged and incorporated herein and the parties hereby
confirm the accuracy thereof.
9.6 Ex_h. ibits. 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.
9.7 Further Acts. Each of the parties hereto shall execute and deliver all such
documents and perform all such acts as reasonably necessary, from time to time, to carry
out the matter contemplated by this Agreement. Without limiting the generality of the
foregoing, the Town shall cooperate in good faith and process promptly any requests and
applications for plat or permit approvals or revisions, and other necessary approvals
relating to the development of the Property by the Developer and its successors.
9.8 Future Effect.
9.8.1 Time Essence and Successors. Time is of the essence of this
Agreement. All of the provisions hereof shall inure to the benefit of and be binding upon
the successors, assigns and legal representative of the parties hereto, except as provided
in Section 9.8.2 below. Notwithstanding the foregoing, to the extent permitted by law,
the Developer's rights hereunder may only be assigned by a written instrument, agreed to
by all of the parties to the Agreement hereto and recorded in the Official Records of Pima
County, Arizona, expressly assigning such rights, and no obligation of the Developer
hereunder shall be binding upon anyone owning any right, title or interest in the Property
unless such obligation has been specifically assumed in writing or unless otherwise
required by law. The Town understands that the Developer may create one or more
entities or subsidiaries wholly owned or controlled by the Developer or Robert p. Zammit
for purposes of carrying out the development of the Property as contemplated in this
Agreement, and the Town's consent to the Developer's assignment of its rights hereunder
to such entities or subsidiaries shall not be withheld. In the event of a complete
assignment by Developer of all rights and obligations of Developer hereunder,
Developer's liability hereunder shall terminate effective upon the assumption by
Developer's assignee, provided that the Town has approved the assignment to such
assignee, which approval shall not unreasonably be withheld.
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Town oF Marana/FCIF Group, LLC 10
9.~.8.2 Te~_~ination Upon Sale to Publi~: It is the intention of the parties
that although recorded, this Agreement shall not create conditions or exceptions to title or
covenants running with the land. Nevertheless, in order to alleviate any concern as to the
effect of this Agreement on the status of title to any of the Property, this Agreement shall
terminate without the execution or recordation of any further document or instrument as
to any lot which has been finally subdivided and individually (and not in "bulk") leased
(for a period of longer than one year) or sold to the end purchaser or user thereof and
thereupon such lot shall be released from and no longer be subject to or burdened by the
provisions of this Agreement.
9.9 No Partnership and Third Parties. It is not intended by this Agreement to,
and nothing contained in this Agreement shall, create any partnership, joint venture or
other arrangement between the Developer and the Town. No term or provision of this
Agreement is intended to, or shall be for the benefit of any person, firm, organization or
corporation not a party hereto, and no such other person, firm, organization or
corporation shall have any right or cause of action hereunder.
9.10 _ Other Instruments Each party hereto shall, promptly upon the request of
the other, have acknowledged and delivered to the other any and all further instruments
and assurances reasonably request or appropriate to evidence or give effect to the
provisions of this Agreement.
9.11 Imposition of Duty by Law. This Agreement does not relieve any party
hereto of any obligation or responsibility imposed upon it by law.
9.12 Entire Agreement This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof. All prior and
contemporaneous agreements, representation and understanding of the parties, oral or
written, are hereby superseded and merged herein.
9.13 Amendment. No change or addition is to be made to this Agreement
except by a written amendment executed by the parties. Within ten (10) days after any
amendment '
to this Agreement, such amendment shall be recorded by, and at the expense
of, the party requesting the amendment, in the Official Records of Pima County, Arizona.
9.14 Names and Plans. The Developer shall be the sole owner of all names,
titles, plans, drawings, specifications, ideas, programs, ideas, designs, and work products
of every nature at any time developed, formulated or prepared by or at the instance of the
Developer in connection with the Property or any plans; provided, however, that in
connection with any conveyance of portions of the infrastructure as provided in this
Agreement such rights pertaining to the portions of the infrastructure so conveyed shall
be assigned to the extent that such rights are assignable, to the appropriate governmental
authority.
9.15 Good Standing; Authority. The Developer represents and warrants to the
Town that it is duly formed and validly existing under the laws of Arizona and is
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Town of Marana/FCIF Group, LLC 1 1
authorized to do business in the state of Arizona. The Town represents and warrants to
the Developer that it is an Arizona municipal corporation duly qualified to do business in
the State of Arizona and is in good standing under applicable state laws. Each of the
parties hereto represents and warrants to the others that the individual(s) executing this
Agreement on behalf of the respective parties are authorized and empowered to bind the
party on whose behalf each such individual is signing.
9.16 Severabilit . If any provisions of this Agreement is declared void or
unenforceable, such provision shall be severed from this Agreement, which shall
otherwise remain in full force and effect. If any applicable law or court of competent
.Jurisdiction prohibits or excuses the Town from undertaking any contractual commitment
to perform any act hereunder, this Agreement shall remain in full force and effect, but the
provision requiring such action shall be deemed to permit the Town to take such action at
its discretion. If, however, the Town fails to take the action specified hereunder, the
Developer shall be entitled to terminate this Agreement.
9.17 Go~vverning~_aLaw/Arbitratioa. This Agreement is entered into in Arizona
and shall be construed and interpreted under the laws of Arizona, and the parties agree
that any litigation or arbitration shall take place in Pima County, Arizona. In particular,
this Agreement is subject to the provisions of A.R.S. 38-511. This Agreement has been
negotiated by the Town and the Developer, and no party shall be deemed to have drafted
this Agreement for purposes of construing any portion of this Agreement for or against
any party. Any dispute, controversy, claim or cause of action arising out of or relating to
this Agreement shall be settled by submission of the matter by both parties to binding
arbitration in accordance with the rules of the American Arbitration Association and the
Arizona Un/form Arbitration Act, A.R.S. 12-501 et seq., and judgment upon the award
rendered by the arbitrator(s) may be entered in a court having jurisdiction thereof.
9.~.18 Recordation. No later than ten (10) days after this Agreement has been
executed by the Town and the Developer, the Town shall record the Development
Agreement in its entirety in the Official Records of Pima County, Arizona.
.9.19 No Developer Representations. Except as specifically set forth herein,
nothing contained herein shall be deemed to obligate the Town or the Developer to
complete any part or all of the development of the Property.
~9.20 Approval If any party is required pursuant to this Agreement to give its
prior written approval, consent or pen'nission, such approval, consent or permission shall
not be unreasonably withheld or delayed.
.9.21 Force Maieure If any party hereto shall be unable to observe or perform
any covenant or condition herein by reason of "force majeure,' then the failure to observe
or perform such covenant or condition shall not constitute a default hereunder so long as
such party shall use its best effort to remedy with all reasonable dispatch the event or
condition causing such inability and such event or condition can be cured within a
reasonable amount of time." ' ,,
Force majeure, as used here, means any condition or event
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Town of Marana/FCIF Group, LLC 12
not reasonably within the control of such party, including without limitation, "acts of
God," strikes, lock-outs, or other disturbances of employer/employee relations; acts of
public enemies; orders or restraints of any kind of government of the United States or any
state thereof or any of their departments, agencies, or officials, or of any civil or military
authority; insurrection; civil disturbances; hots; epidemics; landslides; lightning;
earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of
government and of people; explosions; and partial or entire failure of utilities. Failure to
settle strikes, lock-outs and other disturbances of employer/employee relations or to settle
legal or administrative proceedings by acceding to the demands of the opposing party or
parties, in either case when such course is in the.judgment of the party hereto unfavorable
to such party, shall not constitute failure to use its best efforts to remedy such a condition.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year written below.
Date:
ATTEST:
TOWN OF MARANA
an Arizona municipal corporation
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.
.,,~,~'~'"~ aniel J. Hochuli, Esq.
Attorney for the Town of Marana
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Town of Marana/FCIF Group, LLC 13
STATE OF ARIZONA )
County of Pima )
BCIF GROUP, LLC
an Arizona Limited Liability Company
By_¸
Its
The foregoing document was sworn to and acknowledged before me the 9~ '~
day of~qQ/24~ ,200;/., by Robert p Z~-:~ -,- - - · - - - ~<"~ -
Group, LL~, ' . ~llXtllllt, me ivianag~ng Member of BCIF
and Arizona Limited Liability Company.
Notary Public State of Ar/zone
Pime County
Lisa J. Segats
Expires June 1, 2002
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Town of Marana]FCIF Group, LLC 14