THIS RESOLUTION BECOMES EFFECTIVE ON: 3-19-00 ADOPTED BY THE MAYOR AND COUNCIL, FEB 14 2000 RESOLUTION NO. 18489 RELATING TO ADOPTION OF THE EL CON MALL DEVELOPMENT AGREEMENT AND ESTABLISHING COMPLIANCE WITH RESOLUTION 18306, AND CONFORMING RESOLUTION 18306 TO THE EL CON MALL DEVELOPMENT AGREEMENT. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY TUCSON, ARIZONA AS FOLLOWS: WHEREAS, the City and the Owners have reached agreement on the conditions, terms, restrictions and requirements for redevelopment of the El Con Mall in a manner that provides mitigation of negative impacts to surrounding areas and appropriate assurances for the development plans of the Owners; WHEREAS, this agreement is embodied in the El Con Development Agreement attached hereto and is in the best interests of the City. WHEREAS, the Development Agreement and adoption of conditions satisfied the purpose, interest, and requirement of Resolution 18306. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF TUCSON, ARIZONA, AS FOLLOWS: SECTION 1. The Mayor is authorized to execute the attached El Con Development Agreement on behalf of the City of Tucson. SECTION 2. Resolution 18306 is readopted. All conditions, procedures, and requirements of Resolution 18306 are fully satisfied by compliance with this Resolution and any portion of Resolution 18306 which is inconsistent with the Development Agreement is hereby amended to conform to the Development Agreement. SECTION 3. The various City officers and employees are authorized and directed to perform all acts necessary. or desirable to give effect to this resolution. SECTION 4. WHEREAS, this resolution becomes effective thirty (30) days after the date the resolution is adopted by the Mayor and Council, and is available from the City Clerk. PASSED, ADOPTED AND APPROVED by the Mayor and Council of the City of Tucson, Arizona, FEB 14 2009 EL CON MALL DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") dated February 14, 2000, is entered into by and between ALLIED SERVICES, INC., a Utah corporation, as general partner of Magna Investment & Development, Ltd., a Utah limited partnership; SIERRA INVESTMENT COMPANY, an Arizona corporation; and K-GAM EL CON, L.L.C., an Arizona limited liability company (collectively, the "Owners"), and the CITY OF TUCSON, an Arizona municipal corporation (the "City"). RECITALS: A. The Owners own the shopping center located at 3601 East Broadway Boulevard, Tucson, Arizona, commonly known as the El Con Mall (the "Mall"), legally described in Exhibit "A". The Mall has been operating for over thirty-five (35) years. B. The Mall is presently undergoing major redevelopment (the "Development") which will enhance the commercial viability of the Mall and which, when completed, will benefit the Mall and the City. C. The Development may increase patronage at the Mall to levels equal to or exceeding those when the Mall was originally completed. Resulting vehicular traffic may impact traffic on Broadway Boulevard and Fifth Street. D. The Mall had north access to and from Fifth Street on Jones Boulevard, Dodge Boulevard and Palo Verde Boulevard. After concerns were raised by area residents regarding the potential negative impacts of the proposed redevelopment of the Mall, the Mayor and Council voted to close access to the Mall from these three streets. At the request of neighborhood representatives, the City encouraged, and agreed to participate in, further negotiations between the Owners and area residents to reach a compromise solution. E. After numerous meetings involving the El Encanto, El Conquistador- Miramonte, El Montevideo, and Colonia Solana neighborhoods and the Tamarack Condominiums (the "Affected Neighborhoods"), individual residential owners, the Owners, Mall tenants and City staff, the City adopted Resolution 18306 as a statement of the City process for reaching a compromise. Neither the Affected Neighborhoods nor the Owners fully agreed with Resolution 18306. Pursuant to the process adopted in Resolution 18306, access from Jones and Palo Verde was closed by the City. F. The Owners subsequently withdrew from the process provided by Resolution 18306 after the Mayor and Council directed City staff to prepare an ordinance banning or limiting establishments of one-hundred-thousand square feet or greater. Pursuant to Resolution 18306, the Owners' withdrawal triggered the City's action to close access to the Mall from Dodge. The Mall then filed an action in Pima County Superior Court captioned Allied Services, Inc., et al. v. City of Tucson, et al., Case No. 334578 (the "Street Litigation") seeking to establish its rights to access to the three streets to the north. The Superior Court denied the Owners' request for a preliminary injunction to enjoin the City from closing the three streets and upheld the City's authority to close the access of the Mall to the three streets to the north. G. The City and the Owners are entering into this Agreement pursuant to the provisions of A.R.S. [paragraph] 9-500.05 to settle outstanding differences between the City and the Owners, including the Street Litigation, and to facilitate the Development by providing for, among other things: (i) the conditions, terms, restrictions and requirements for the Development of the Mall and access to and from the Mall; and (ii) other matters related to the Development of the Mall. The parties acknowledge that nothing herein including, without limitation, this Agreement, the Plan or the Conditions, shall be construed to be a rezoning of the Mall property. H. The City and the Owners acknowledge that the Development of the Mall pursuant to this Agreement will result in significant planning and economic benefits to the City by: (i) requiring the Development of the Mail to be consistent with the City's general plan and the approved development plan for the Mall; (ii) increasing tax and other revenues to the City based on improvements to be constructed at the Mall; and (ii) creating employment opportunities through the Development of the Mall and through new commercial uses to be located at the Mall. I. The Parties acknowledge that while the continued access to Dodge and the mitigation and improvements to Dodge are important considerations for this Agreement, they also constitute satisfactory mutual consideration solely for Section 7 of this Agreement if that section is severed from this Agreement. J. The Mayor and Council of the City have authorized the execution of this Agreement by Resolution No. 18489, to which this Agreement is attached. AGREEMENT: Now, therefore, in consideration of the promises and the mutual obligations contained herein, the City and the Owners agree as follows: Section 1. Term. This Agreement shall become effective upon its execution by all parties and the taking of effect of a duly authorized resolution of the City's Mayor and Council (the "Date of Agreement"). The term of this Agreement shall commence upon the Date of Agreement and shall automatically terminate on the twentieth (20th) anniversary of such date or such earlier date as mutually agreed by the parties. The parties agree to cooperate in the recordation of any such termination. Section 2. Development Plan. 2.1. The City shall diligently process a development plan pursuant to Land Use Code ("LUC") [paragraph] 5.3.8 for the Mall in substantial conformance with the conceptual development plan (the "Plan") attached as Exhibit "B" hereto. Notwithstanding the time limits set forth in LUC [paragraph] 5.3.8.2.B, the Development specified in the Plan, the Conditions and this Agreement shall be permitted in accordance with the Owners' Protected Development Rights set forth in Section 5 of this Agreement. 2.2. All subsequent changes to the Plan and Conditions shall be approved pursuant to LUC [paragraph] 5.3.8.3 and [paragraph] 5.4.5.19. 2.3. The Plan contemplates the construction of additional leasable area of approximately 130,000 square feet, located in the northwest area of the Mall, and identified on the Plan as "Future Building Site". Although the specific user(s) for this location has/have not been identified, the City and the Owners agree that this building area shall be set back at least two hundred and fifty (250) feet from the. residential properties to the west. The Owners and the City agree that if the area south of Future Building Site and north of the existing Mall buildings is to be used for any loading activity, such activity and any noise therefrom shall be shielded and screened from the El Encanto neighborhood to the west. Section 3. El Con Mall Conditions. 3.1. The parties agree that the City will process a request for a change in conditions for approval of the rezonings in cases C9-56-01, C9-74-34 and C9-88-12 pursuant to LUC Section 5.4.5.19 and a change of conditions from the approval of the December 18, 1994 site plan. The conditions to be requested through these procedures and the conditions agreed to in this Agreement, which are identical, are attached hereto as Exhibit C (the "Conditions"). If adopted by the Mayor and Council, the Conditions shall become effective as part of the approved conditions of the Mall subject to the conditions precedent stated therein. If the Mayor and Council fail to approve the Conditions, this Agreement shall be void. 3.2. The parties agree that the Mayor and Council may, pursuant to Section 2 of Ordinance No. 9293 (the "Ordinance"), consider the Large Retail Establishment Design Criteria in LUC See. 3.5.9.7 in determining whether to approve the Conditions. 3.3. To the extent that the Ordinance is applicable at the time of execution of this Agreement or thereafter, the adoption of the Conditions by Mayor and Council shall constitute a special requirement adopted by the Mayor and Council for approval and/or a change of condition which would otherwise be subject to the regulations set forth in the Ordinance. The adoption of the Conditions shall constitute full compliance with the provisions and requirements of the Ordinance pursuant to Section 2 thereof and shall authorize the development of all large retail establishments depicted on the Plan in accordance with this Agreement, the Plan and the Conditions. If the Ordinance, which is currently subject to challenge, is later determined to be invalid, paragraphs 3.2 and 3.3 shall be inapplicable. Section 4. Site Mitigation Conditions. 4.1. The Owners agree, at their sole cost, to provide and/or construct within a reasonable time period each of Conditions I (a) (1) and (5), I (b) (1) and (5), I (c), I (d), I (e), I (f), II (1), II (4), III, IV, V, VI, VII, VIII and IX (the "Site Mitigation Conditions") described in Exhibit C commencing within thirty (30) days following the Effective Date as defined in Section 9 below and following approval by the City of the Plan and the drainage plan required under Condition V(c) in Exhibit C. 4.2. The Site Mitigation Conditions, except for the internal road improvements in Condition II (1) and the lighting provided in Condition IV (a) and (b), shall be completed or, for Conditions II (4) and III (a), be assured before the issuance of a certificate of occupancy for any new construction at the Mall which is in excess of 50,000 square feet. The Site Mitigation Conditions required by Condition II (4) and III (a) relating to improvements on Broadway Boulevard may be assured either by the formation of an Improvement District for the purpose of constructing the improvements or by the posting of a bond in an amount determined by the City Engineer that will assure construction of the required improvements. New construction shall mean construction which materially expands the existing footprint or building shell. 4.3. In the event that the Owners are unable to complete one or more of the Site Mitigation Conditions due to a decision by the Board of Adjustment or the decision by a Superior Court on the appeal of a Board of Adjustment decision, Certificates of Occupancy shall not be withheld provided that there is substantial compliance with the Conditions as a whole and the intent of the parties' is not vitiated by the severability of the Condition which is not being fully completed. 4.4. The mitigation of the internal road improvements in Condition II (1) and the outside lighting provided in Condition IV (a) and (b) may be phased with new development provided that these Conditions shall be met within eighteen (18) months of the Effective Date. No further certificates of occupancy shall be issued after eighteen (18) months from the Effective Date unless these Conditions have been fully satisfied. In the event there is a final determination that the implementation of this Agreement, the Plan and these Conditions will substantially impair the continued use of the nonconforming residentially zoned parcels, the satisfaction of these Conditions shall not be required. Section 5. Protected Development Rights. 5.1. Purpose. One of the purposes of this Agreement is to establish legally protected rights for the completion of the Development of the Mall as set forth in this Agreement, the Plan and Conditions in a manner which is consistent with the land use regulations in effect on the Date of Agreement (the "Existing Regulations") which apply to the Development of the Mall in accordance with the Plan, the Conditions and this Agreement, in order to ensure reasonable certainty, stability and fairness to the Owners over the term of this Agreement. 5.2 Protected Development Rights. The Owners shall be entitled to develop the Mall in substantial conformance with the Plan, the Conditions, and the Agreement in accordance with any and all vested rights to which the Owners are entitled during the term of this Agreement as permitted by the Existing Regulations and this Agreement (the "Protected Development Rights"). The Owners' Protected Development Rights shall not be materially impaired as a result of the City's application and enforcement of ordinances, rules, regulations, permit requirements, development fees, other requirements, and/or official policies of the City land use regulations adopted or approved after the Date of Agreement (the "Future Regulations"), except as specifically provided herein and subject to the purposes and intentions of this Agreement. 5.2.1 Application of Future Regulations. The Owners shall be subject to the Future Regulations governing Development of the Mall only as provided below and subject to the purposes and intent of this Agreement, unless the City and the Owners agree to the application of a Future Regulation. 5.2.2 Categorically Applicable Future Regulations. The following Future Regulations shall be applicable to the Development of the Mall: 5.2.2.1 Supervening Authority. The Future Regulations are enacted as necessary to comply with requirements imposed on the City by county, state or federal laws and regulations, court decisions, and other similar superior external authorities beyond the control of the City, provided that any such regulation is equally applicable to all areas of the City. 5.2.2.2 Uniform Code Authority. The Future Regulations are updates of, and amendments to, existing building, plumbing, mechanical, electrical, dangerous buildings, drainage, fire and similar construction and safety-related codes, such as the Uniform Building Code, which updates and amendments are generated by a nationally-recognized construction/safety organization, such as the International Conference of Building Officials, or by the county, state or federal government or are amendments to such construction or safety codes adopted by the City for the purpose of conforming such codes to conditions generally existing in the City. 5.2.2.3. Threat to Public Health and Safety. The Future Regulations are applied to the Mall after public hearing and an opportunity for comment, and the Future Regulations are reasonably necessary to alleviate a legitimate and severe threat to public health and safety and the minimal and least intrusive alternative practicable. 5.2.2.4. Administrative Fee Increases. The Future Regulations are increases in existing types or categories of fees (as contrasted with the future imposition of development fees enacted pursuant to A.R.S. [paragraph] 9-463.05) applicable to the Mall on the Date of Agreement, provided any such increase is equally applicable to all areas of the City, or is applicable to the Owners in amounts no greater than similarly situated developers or builders in the City. 5.3 Anti-Moratorium. No moratorium, as that term is defined in A.R.S. [paragraph] 9-463.06, shall be imposed on Development of the Mall unless it is imposed pursuant to a City-wide ordinance which complies with the provisions of A.R.S. [paragraph] 9-463.06, as adopted, and not as that provision may be amended or repealed subsequent to the Date of Agreement except as may be necessary to comply with state mandated provisions. Section 6. Assurances. 6.1 Parking Assurances. The parties agree that the City shall take the measures provided herein to assure the Owners that they are entitled to the reduction of the parking requirements equal to the parking lost due to the Owners agreement to accept and implement the Conditions, and to provide assurances that the implementation of the Plan and Conditions shall not affect the existing uses of the nonconforming residential zoned parcels. The measures may include: 6.1.1 Filing with the Board of Adjustment (the "Board") no later than June 1, 2000, a request for a variance to reduce the required motor vehicle parking for the Mall by the amount of spaces that are lost due to the implementation of the mitigation provided in the Plan and Conditions (the "Parking Variance"). The City agrees to support such an application if filed by the Owners. The granting of a Parking Variance that is final and non-appealable shall be a condition precedent to the effectiveness of Section 4. of this Agreement. 6.1.2 Submitting, no later than June 1, 2000, the Plan and Conditions to the Zoning Administrator with a request for a determination that the Plan and Conditions do not affect the nonconforming status of the parking and/or other existing uses in the residentially zoned parcels within the Mall (the "Interpretation"). The City shall provide notice of the Zoning Administrator's determination to the owners of residential property within three hundred feet of the boundary of the Mall as well as to the neighborhood association representatives for the Affected Neighborhoods. The granting of the Interpretation that is final and non- appealable shall be a condition precedent to the effectiveness of Section 4 of this Agreement. 6.1.3 Alternatively, if the "Parking Assurances" are addressed under Section 6.2, then the effectiveness of Section 4 of this Agreement shall occur upon the final adoption of the necessary LUC amendment(s). 6.2 The parties agree to initiate any and all amendments to the LUC necessary to implement the purpose and intent of this Agreement. Section 7 Traffic Mitigation Conditions. 7.1 Access to the Mall and mitigation of traffic shall be accomplished with the implementation of Conditions I (a) (2), (3) and (4), I (b) (2), (3) and (4), I (c), I(d) and I (f), II (2), (3) and (5) (the "Traffic Mitigation Conditions"). The implementation of the Traffic Mitigation Conditions as set forth in this section are supported by the mutual consideration contained herein and shall be implemented independently and apart from the remaining provisions of this Agreement or the provisions adopted in Ordinance 9345 if said provisions are not satisfied, breached or held by a court to be invalid. 7.2 The Owners, at their sole cost and expense, shall complete construction of the Traffic Mitigation Conditions for Dodge Boulevard as set forth in Traffic Mitigation Conditions I (a)(2), (3) and (4), I (b) (2), (3) and (4), I (c), I(d), and (f) within 180 days from receipt of all permits and approvals necessary for the construction of these conditions, except that the City shall satisfy Conditions II (2) (a) and (g),and II (5) (a) and (c), and the Parties shall jointly satisfy Conditions II (3) and II (5) (b), all within the same time period. 7.3 Pursuant to the Plan, the City shall take appropriate measures to: (i) close all public traffic access to Jones Boulevard, Palo Verde Boulevard and to Avenida del Rio at the northern property line of the Mail site, and (ii) to refrain, provided the Owners comply with this section, from permanently closing, restricting or altering Dodge Boulevard (except for necessary maintenance, repair and temporary closure for public safety measures) for vehicular and pedestrian traffic from the Mall north to Fifth Street, or, if Dodge is closed, the City shall pay appropriate compensation to El Con. The parties hereby agree that the exact amount of such compensation will be difficult to ascertain. Accordingly, if Dodge is closed in a manner that is contrary to this subsection, the City agrees to pay to the Owners all costs they incurred in implementing and installing the mitigation required by the Conditions set forth in Exhibit C. The parties agree that this amount represents a fair and reasonable estimate of the damages that would be caused to the Owners from the closure of Dodge. Section 8 Expeditious Plan Review. The City agrees to expeditiously and in good faith take such other further steps as may be reasonably necessary to implement the terms and understandings of this Agreement and the Plan, including diligently processing all approvals of plats, permits and other matters that may be required by the Owners consistent with the approved Plan, this Agreement and applicable law. Section 9 Conditions Precedent. The Owners' obligations hereunder shall be conditioned upon the granting of the Parking Variance and Interpretation as set forth in Sec. 6.1, which shall be considered "Conditions Precedent" to the effectiveness of Section 4 of this Agreement. The date upon which all Conditions Precedent have been satisfied shall be the "Effective Date" of this Agreement. Section 10 Settlement of Pending Litigation. Upon full satisfaction of each of the Conditions Precedent, the parties agree to dismiss the pending litigation in Allied Services Inc. et al. v. City of Tucson, Pima County Superior Court case number 334578 with each party to bear their own costs and attorneys' fees, and to exonerate the cash bond posted in such case in favor of the Owners. Section 11 Successors and Assigns. All of the provisions of this Agreement shall inure to the benefit of and be binding upon successors and assigns of the parties to this Agreement pursuant to A.R.S. [paragraph] 9-500.05(D). Section 12. 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 in Section 14.9 to the Defaulting Party, which notice shall state the nature of the default claimed and make demand that such default be corrected. The Defaulting Party shall then have (i) twenty (20) days from the date of such notice within which to correct such default if it can reasonably be corrected by the payment of money, or (ii) sixty (60) days from the date of such notice to cure such default if action other than the payment of money is reasonably required, or if any such non-monetary default cannot reasonably be cured within sixty (60) days, then such longer period as may be reasonably required, provided and so long as such cure is promptly commenced within such period and thereafter diligently prosecuted to completion. If any such default is not cured within the applicable time period(s) set forth above, then the Non- Defaulting Party shall be entitled to commence an action at law or in equity in the Pima County Superior Court. Section 13. Cooperation in the Event of Legal Challenge. In the event of any legal action or proceeding instituted by a third party challenging the validity of any provision of this Agreement, the parties agree to cooperate in diligently defending such action or proceeding. If the resolution approving this Agreement is successfully challenged by a third party, the City shall pay the Owners all costs the Owners' incurred in implementing and installing the mitigation to Dodge Boulevard as required by the Condition II (2) set forth in Exhibit "C". The parties agree that this amount represents a fair and reasonable estimate of the damages that would be caused to the Owners from such a challenge. Section 14. General Provisions. 14.1 Recitals Incorporated. The recitals set forth above are accepted by the parties to be true and correct and are incorporated herein by this reference. 14.2 Headings. 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 Agreement's provisions. 14.3 Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by this reference with the same force and effect as if it were fully set forth in the body of the Agreement 14.4 Entire Agreement. This Agreement and the attached exhibits constitute the entire agreement between the parties pertaining to the subject matter of the Agreement. All prior and contemporaneous agreements, representations and understandings of the parties, oral or written, are superseded and merged in this Agreement. 14.5 Further Acts. In addition to the matters described in Section 6. each of the parties to this Agreement shall promptly and expeditiously 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. 14.6 Recordation. This Agreement shall be recorded in its entirety in the official records of Pima County, Arizona not later than ten (10) days after this Agreement is executed by the City and the Owners, and a Resolution is enacted by the Mayor and Council adopting this Agreement. 14.7 Amendments. No change or addition is to be made to this Agreement except by a written amendment executed by the City and the Owners. Within ten (10) days after any amendment to this Agreement, such amendment shall be recorded in the official records of Pima County, Arizona. 14.8 Time of Essence. Time is of the essence of this Agreement. 14.9 Notices. All notices, requests, demands or other communications ("Notices") required by this Agreement or otherwise given in respect of any matter with which disagreement is concerned shall be in writing and served by personal delivery or deposited within the U.S. Postal Service, certified mail, return receipt requested, with proper postage affixed, addressed and directed to the party to receive the same as follows: If to the City: City Clerk City of Tucson City Hall, 9th Floor P. 0. Box 27210 Tucson, Arizona 85726-7210 With copies to: City Manager City of Tucson City Hall, 10th Floor 255 West Alameda P. 0. Box 27210 Tucson, Arizona 85726-7210 City Attorney City of Tucson City Hall, 7th Floor 255 West Alameda P. 0. Box 27210 Tucson, Arizona 85726-7210 If to Owners: Magna Investment & Development Ltd., a Utah limited partnership 6375 E. Tanque Verde, Suite 120 Tucson, Arizona 85715 Attention: Michael Papanikolas Telephone: (520) 546-9010 Facsimile: (520) 546-9119 and K-GAM El Con, L.L.C., an Arizona limited liability company 6061 East Broadway, Suite 130 Tucson, Arizona 85711 Attention:. Lee A. Kivel and Foster D. Kivel Telephone: (520) 747-7576 Facsimile: (520) 747-9291 With copies to: Michael C. Young, Esq. Duffield, Young, Adamson & Alfred, P.C. 3430 East Sunrise Drive, Suite 200 Tucson, AZ 85718 Telephone: (520) 792-1181 Facsimile: (520) 792-2859 Ronald N. Hatcher, Esq. The Law Firm of Ronald N.Hatcher, Jr., P.L.C. 6969 East Sunrise Drive, Suite 102 Tucson, Arizona 85750 Telephone: (520) 615-1375 Facsimile: (520) 615-1069 Except as otherwise specifically stated in this Agreement, all Notices shall be effective upon delivery and shall be deemed delivered on the date when actually received. Any party may designate a different person or entity or change the place to which any Notice shall be given as provided in this Agreement, which Notice shall be effective after the same is actually received by the other party. 14.10 Force Majeure. Notwithstanding any other term, condition or provision hereof to the contrary, in the event any party hereto is precluded from satisfying or fulfilling any duty or obligation imposed upon such party by the terms hereof due to labor strikes, material shortages, war, civil disturbances, weather conditions, natural disasters, acts of God, or other events beyond the control of such party, the time period provided herein for the performance by such party of such duty or obligation shall be extended for a period equal to the delay occasioned by such events. 14.11 Attorneys' Fees. In the event either party hereto shall commence any civil action against the other to enforce or terminate this Agreement or to recover damages for the breach of any of the provisions, covenants or terms of this Agreement on the part of the other party, the prevailing party in such civil action shall be entitled to recover from the other party, in addition to any relief to which such prevailing party may be entitled, all costs, expenses and reasonable attorneys' fees incurred in connection therewith. 14.12 Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona. 14.13 Severability. The provisions of this Agreement, except for Section 7 and as provided in Sections 4.3 and 4.4, shall be non-severable unless the Owners and the City Manager determine that a provision held by a court of competent jurisdiction to be invalid, void or unenforceable is insubstantial from the full Agreement. The provisions of Section 7 shall survive for the term of this Agreement - independently of the validity of any other provisions or the validity of Ordinance 9345. 14.14 No Partnership, Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between the Owners and the City. 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 to this Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement. 14.15 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signatures of all parties may be physically attached to a single document. 14.16 Compliance with State Laws. All actions taken by the City pursuant to this Agreement shall be in accordance with applicable state laws. CITY OF TUCSON, an Arizona municipal corporation By: [R. Walkup] Mayor [deleted: 7 pages of signatures] EXHIBIT A (Description of El Con Mall) TO El Con Mall Development Agreement [formal description deleted] EXHIBIT B (Conceptual Development Plan) TO El Con Mall Development Agreement [plan drawing deleted] EXHIBIT C (El Con Mall Conditions) TO El Con Mall Development Agreement i EL CON MALL CONDITIONS Development at the El Con Mail, including the areas designated in cases C9-56-01, C9-74-34 and C9-98-12 that have been developed with the associated R-1, R-2 and C-1 parcels, shall continue to be developed as a single unified development except that nothing herein shall change the zoning classification of the R-1, R-2 and C-1 parcels. All future development shall be in substantial conformity with a final, approved development plan that is in substantial conformity with the conceptual development plan approved by the Mayor and Council on February 14, 2000 and the following conditions: I. LANDSCAPING AND SCREENING a. Screen/Sound attenuation walls along property boundaries. Walls shall be constructed with sound attenuation properties which substantially reduce the effect of sound on adjacent residential properties (split-face and fluted, minimum 8 inches thick and filled with sound attenuation material). All walls to be capped to increase sound attenuation. All changes in wall height from one segment to another shall be stepped to provide visual continuity. 1. El Encanto /El Con common property line. A 10 foot high decorative sound/screen masonry wall shall be provided. 2. El Conquistador-Miramonte /El Con between Jones and Dodge. A 10 foot high decorative sound/screen masonry wall shall be provided between Jones and Palo Verde. An 8 foot high decorative sound/screen masonry wall shall be provided between Palo Verde and Dodge. 3. West Side of Dodge from the existing alley to Calle del Prado. An 8 foot decorative sound/screen masonry wall shall be provided. 4. East Side of Dodge from Fifth to the northeast corner of the El Con property (Tamarack). a.) Add one foot to the existing decorative masonry wall, if approved by the property owners. b.) A new 4 foot high decorative sound/screen wall shall be provided adjacent to the (reconstructed) east curb line, except where openings are needed for access and for sight distance. 5. El Montevideo /El Con. A 10 foot high decorative sound/screen masonry wall shall be provided. Trees and landscaped nodes ~hall be provided to break up the visual impact of the wall on the El Con side. b. Landscape and security buffers. A landscape buffer shall be provided adjacent to the screen/sound walls as listed below. The landscape buffers shall provide varied vegetation to break up long lengths of wall face and shall include river rocks, cactus, pyracantha or similar unfriendly vegetation which will deter access over the wall, and canopy trees at regular intervals of 20 to 30 feet. 1. El Encanto /El Con common property line. A minimum 8 foot buffer integrated with landscape nodes, which extend into the parking areas. 2. El Conquistador-Miramonte /El Con between Jones and Dodge. A minimum 8 foot buffer integrated with landscape nodes, which extend into the parking areas. 3. West Side of Dodge from the existing alley to Calle del Prado. Augmented landscaping shall be provided in conjunction with the traffic mitigation measures. 4. East Side of Dodge from Fifth to the northeast corner of the El Con property (Tamarack). Augmented landscaping shall be provided in conjunction with the traffic mitigation measures. 5. El Montevideo /El Con. A minimum 8 foot buffer integrated with landscape nodes, which extend into the parking areas. c. All walls shall be constructed of graffiti resistant materials. d. Any wall over 3 feet in height and 75 feet in length shall vary the wall alignment with jogs, curves, notches, setbacks, or other similar architectural features. e. Landscaping shall be provided on Broadway Boulevard per current City codes. Required landscaping may be placed in the City right of way as permitted by the LUC. f. A landscape design shall be developed for the entire El Con Mall development, including all out-pad development, to meet current City code and provide for continuity and consistency in the landscaping of the site. All landscaped areas shall be designed for water-harvesting effectiveness. II. TRAFFIC CIRCULATION AND ACCESS 1. General a. Traffic circulation shall substantially conform to the attached concept plan. b. The truck circulation route shall be located adjacent to the buildings [to] along the west and north and a minimum of 200 feet from the east El Con Mall property line. All other PAAL's shall be designed to discourage truck traffic or through' traffic along neighborhood boundaries. The location of the truck circulation route shall be in substantial conformance with the attached concept plan. c. Indirect or offset access from Jones Boulevard and Dodge Boulevard shall be designed to discourage through traffic. d. All improvements shall substantially comply with the mitigation measures identified in the Traffic Mitigation Study, which is being conducted on behalf of the City. e. A smooth surface to assist with sound attenuation shall be used to surface reconstructed Jones, Dodge and the mall's ring road. 2. Dodge Boulevard a. The City shall offer to purchase the existing private homes along the west side of Dodge Boulevard, and be re-marketed after mitigation improvements. b. Dodge Boulevard shall be designed to provide for 2-way traffic. c. The Dodge Boulevard street cross-section shall be reduced from 48 feet to two (2) twelve foot wide, travel lanes, except, as required for turning movements at the 5h Street intersection and moved as far west as practical. d. Traffic calming mitigation shall be installed on Dodge Boulevard including, but not limited to, stop signs, traffic islands, roadway narrowing and/or speed humps. e. Sidewalk shall be provided on the West Side of Dodge Boulevard. f. A traffic control device shall be installed at the intersection of Calle del Prado restricting northbound vehicles on Dodge Boulevard from entering Calle del Prado. g. No separate right turn lane for east bound travel on 5th Street at Dodge Boulevard. 3. North Access a. Mall access to Jones, Palo Verde Road and Avenida Del Rio from the northern property line shall be closed or shall remain closed. 4. Broadway Boulevard a. A single right turn lane shall be installed to Dodge Boulevard. b. A dual left turn lane may be installed to Dodge Boulevard and at the El Con entrance west of the Randolph Way alignment, if desired and/or warranted by the Traffic Mitigation Study. c. Access to El Con at the present alignment of Randolph Way shall be closed and moved further to the west. d. A minimum six foot wide sidewalk shall be installed along the Broadway Boulevard frontage. e. An Improvement District may be utilized if desired to fund the improvements along Broadway Boulevard as necessitated by the El Con Mall development. Only El Con property will be assessed. f. A diamond lane for right turn traffic and busses shall be provided on Broadway along the southern boundary of the El Con property. If approved by the Mayor and Council, the City shall pay for one half the cost of the construction of the diamond lane. 5. 5th Street a. The existing right turn lane at Jones Boulevard shall be removed. b. Truck access shall not be allowed to and from 5th Street. III. PEDESTRIAN ACCESS / ALTERNATE MODES a. Bus stops shall be developed on Broadway Boulevard with ADA designed shelters and canopy trees. Specific design of the shelters shall be compatible with the overall architectural theme of El Con Mall (shall include original artwork). b. A dedicated pedestrian access with a 6 to 8 foot wide sidewalk and canopy trees or other shading devices to shade at least sixty-five (65) to seventy-five (75) percent of the sidewalks during the major part of the day (shadow pattern needs to be taken into consideration) at regular intervals shall be provided from the bus stop/street to a principal entrance of El Con Mall. c. A bicycle connection through the El Con Mall from Broadway Boulevard to 5th Street shall be developed with appropriate signage per the adopted Arroyo Chico Bikeway Plan. IV. LIGHTING a. All parking lot lighting shall be shielded and directed down and away from the residential neighborhoods. b. The height of the parking lot lighting shall be the stair-stepped from approximately 14 feet within 150 feet of the residential neighborhoods to a maximum 30 feet for the remainder of the property and shall be consistent with the landscape plan. c. All wall-mounted lighting on buildings shall be directed down and away from the residential neighborhoods. d. All lighting shall comply with the Outdoor Lighting Code, Chapter 6 Tucson Code. V. DRAINAGE a. A drainage report shall be provided for the entire El Con Mall property. b. The drainage line on Palo Verde Road shall be extended to the El Con Mall property line by the City of Tucson. c. El Con shall insure that all water, which collects on site, shall be retained, detained and discharged from the site only in conformance with City floodplain regulations and a drainage report approved by the City Engineer. VI. OUTDOOR ACTIVITIES a. Outdoor dining areas shall not be permitted within 250 feet of residential neighborhoods. b. Loudspeakers or music, live or recorded, shall not be permitted within 250 feet of residential neighborhoods and where permitted shall be directed away for residential neighborhoods in a manner which protects against undue noise in the residential neighborhoods. c. Outdoor storage areas shall not be permitted within 250 feet of residential neighborhoods and where permitted shall be screened with an 8 foot high wall. No storage shall be permitted in excess of its screen wall. d. Loading zones shall not be permitted within 200 feet of residential neighborhoods, except for those, which exist at the time of the adoption of these conditions. All such existing loading zones shall be nonconforming but shall lose that nonconforming status on the reconstruction or change of use of the principal business using the loading zone at the time these conditions are adopted. e. Loading docks, trash compactors, trash dumpsters or recycling containers shall not be permitted within 200 feet of residential neighborhoods except for those, which exist at the time these conditions are adopted. All such existing loading docks, trash compactors, trash dumpsters or recycling containers shall be phased out upon the change in any business using them and in no event later than 5 years from the adoption of these conditions. All loading docks shall be screened by a minimum 10 foot high masonry wall or by buildings measured from the loading dock floor elevation. All trash compactors, trash dumpsters or recycling containers shall be screened by a minimum 8 foot high masonry wall or by buildings. New loading docks, trash compactors, trash dumpsters and recycling containers may be installed as necessary for the out pads along Broadway provided they are adequately screened. f, New auto service bay doors shall not be permitted facing residential neighborhoods. g. Drive-through lanes shall not be permitted on the western-most pad for any food service use or on the west side of western-most pad for any other use. h. Exhaust scrubbers shall be provided on all food-service tenants and developments. i. Truck parking shall only be in a designated area that shall be developed in the commercially zoned parking lot to the south and shall not be located within 300 feet of residential neighborhoods. j. Temporary delivery truck parking shall not be permitted within 200 feet of residential neighborhoods. k. Delivery and loading operations shall not be permitted between the hours of 10:00 p.m. and 7:00 a.m. except as permitted by existing leases in place as of 1/1/00. l. No trash may be removed between the hours of 4:00 p.m. and 9:00 a.m. m. Idling shall be prohibited between the hours of 6:00 p.m. and 7:00 a.m. VII. GENERAL a. An architectural design and color scheme (theme) shall be developed for the entire Mall development, including all out-pad development, to be compatible with general area and to provide for continuity and consistency in the architecture of the site. b. A uniform signage plan shall be developed for Broadway Boulevard and integrated into the landscape plan. El Con shall not seek any variance or other exemption from the sign code for any sign which would be visible to surrounding neighborhood residential properties. c. "Safe by Design" concepts shall be utilized in the Mall development as recommended by the Tucson Police Department. d. Any relocation, modification, etc., of existing utilities and/or public improvements necessitated by the proposed development shall be at no expense to the public unless determined by the City to be for a public purpose. e. Provide a Hazardous Materials Management Plan and Hazardous Materials Inventory Statement as provided in the Fire Code to assure that the building site and design will protect public health and safety from accidental exposure to hazardous materials as provided in the Tucson Fire Code. f. The Owners of the property shall participate in a commission with representatives of the City and adjoining neighborhoods that shall monitor the observance of these conditions. g. The Home Depot to be located as designated on the Development Plan shall not be open for business to the public between the hours 10:00 p.m. and 6:00 a.m. h. The owners shall comply with the City of Tucson noise ordinance. VIII. FUTURE BUILDING SITE a. If the area south of the Future Building Site designated on the approved conceptual development plan and north of the existing buildings of the Mall is to be used for loading, the loading and any noise therefrom shall be shielded and screened from the residential properties to the west. IX CONDITIONS PRECEDENT These conditions shall take effect upon the completion of the following conditions precedent: a. A final, non-appealable determination establishing that parking lost due to the implementation of these conditions shall be subtracted from the required parking for the development; b. A final, non-appealable determination that the implementation of these conditions shall not affect the continued use of the existing nonconforming parking.