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HomeMy WebLinkAboutResolution 96-106 development agreement for financing improvements on hartman road and cortaro farms roadMARANA RESOLUTION NO. 96-106 A RESOLUTION OF TIIE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING THE TOWN TO ENTER INTO A DEVELOPMENT AGREEMENT BY AND BETWEEN THE TOWN OF MARANA AND NORMAN P. MCCLELLAND, FRANCES H. MCCLELLAND AND SHAMROCK FARMS COMPANY FOR THE PURPOSE OF FINANCING THE CONSTRUCTION OF IMPROVEMENTS ON HARTMAN ROAD AND CORTARO FARMS ROAD, IN ORDER TO FACILITATE TIlE DEVELOPMENT OF PROPERTY LOCATED AT THE NORTHEAST CORNER OF CORTARO FAR.MS ROAD AND THE 1-10 FREEWAY. WHEREAS, Shamrock Farms is the owner of the property located at the northeast corner of Cortaro Farms Road and the 1-10 Freeway, and specifically a portion of the NE ½ of Section 26 T12S, R12E; and WHEREAS, a Development Agreement has been drafted for the purpose of financing improvements to Hartman Road and Cortaro Farms Road in order to facilitate the development of the property consisting of 100.10 acres located at the northeast corner of Cortaro Farms Road and the 1-10 Freeway; and WHEREAS, it has been determined by the Mayor and Council of the Town of Marana, that the Development Agreement between the Town of Marana and Norman P. McClelland, Frances H. McClelland and Shamrock Farms Company should be approved. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana, Arizona, that the Development Agreement between the Town of Marana, the McClellands and Shamrock Farms, for the purpose of financing improvements to Hartman Road and Cortaro Farms Road, in order to facilitate the development of the property located at the northeast comer of Cortaro Farms Road and the 1-10 Freeway, specifically located at the Northeast ~A of Section 26, T12S, R12E, G. & S.R.M., is approved and the Mayor is authorized to execute the Development Agreement on behalf of the Town. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 3rd day of December, 1996. ~aniel J. Hochuli Town Attorney Marana, Arizona Resolution No. 96-106 Page 1 of 1 When recorded, return to: Steven A. Betts, Esq. Gallagher & Kennedy 19th Floor 2600 North Central Avenue Phoenix, Arizona 85004-3020 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF IVlARAN& an Arizona municipal corporation (the "Town") and NORMAN P. MCCLELLAND, a married man dealing with his sole and separate property, FRANCES H. MCCLELLAN'D, a single woman, and SHAMROCK FARMS COMPANY, an Arizona corporation (collectively, "Owner/Developer"). RECITALS A. The Owner/Developer is the owner of that real property located within the municipal boundaries of the Town of Marana in Pima County, Arizona, as depicted on the map attached hereto as Exhibit "A" and legally described on Exhibit "B" (the "Property"). B. The Owner/Developer and the Town desire to facilitate the development of the Property as an integral part of the Town. The development of the Property pursuant to the Agreement is acknowledged by the parties hereto to be consistent with the Town's General Plan and to operate to the benefit of the Town, Owner/Developer, and the general public. C. The Owner/Developer has filed a rezoning application for the Property that shall govern the development of the Property (the Zoning). The Town approved the Zoning on December 19, 1995 by Ordinance No. 95.30. D. The parties understand and acknowledge that this Agreement is a "Development Agreement" within the meaning of, and emered into pursuant to the terms of, Arizona Revised Statutes §9-500.05, in order to facilitate the development of the Property. E, The Town and the Owner/Developer recognize that the Town will benefit significantly by the Owner/Developer's funding and construction of the Hartman Road Improvements, as defined in Section 2 below. Thus, the Town desires, in accordance with stipulation 12 of the Zoning, to reimburse the Owner/Developer for the Hartman Road Costs, as defined in Section 2 below, from transaction privilege tax revenues received from commercial and retail establishments to be located on the Property. F. The Town and the Owner/Developer also recognize the need for construction of the Cortaro Farms Road Regional Improvements, as defined in Section 3 below, and agree that the Owner/Developer shall pay one hundred thousand dollars ($100,000) toward the cost of the Cortaro Farms Road Regional Improvements upon request by the Town, which contribution will be returned to the Owner/Developer upon the State of Arizona's repayment of the cost of the Cortaro Farms Regional Improvements to the Town. NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth herein, the parties hereto state, confirm and agree as follows: AGREEMENT 1. Hartman Road Construction and Reimbursement. 1. I Hartman Road Construction. As required by zoning stipulation 12 of the Zoning, the Owner/Developer shall publicly bid, plan, and construct, to Town and Pima County standards, drainage and street improvements (with a twenty-four foot minimum pavement width) for two lanes on Hartman Road from the north boundary of the Property to a logical point of connection adjacent to Countryside Subdivision ("Hartman Road Improvements"). The Owner/Developer shall pay all costs associated with the planning and construction of the Hartman Road Improvements except for fight-of-way acquisition costs, which shall be paid by the Town to the property owners at the time such right*of-way is required for construction purposes. The Hartman Road Improvements shall be constructed concurrently with any commercial development, and the improvements to the other portions of Hartman Road (adjacent to the Property) shall be constructed concurrently with any residential development. 1.2 Reimbursement Procedures. In recognition of the public benefit to be received from Owner/Developer's construction of the Hartman Road Improvements, the Town agrees to reimburse Owner/Developer up to the full cost, without interest, of the planning and construction costs associated with the Ham'mm Road Improvements ("I-I~man Road Costs"). Owner/Developer shall submit to the Town receipts, invoices, or other instruments or documents reasonably satisfactory to the Town evidencing payment by Owner/Developer of Hartman Road Costs. Hartman Road Costs shall be reimbursed to Owner/Developer from fifty pement (50%) of the transaction privilege taxes received fi.om the commercial and retail establishments ("Commercial Project") to be located on the Property, excluding revenues received by the Town fi.om construction activities for the Commercial Project "Project Revenues"). The reimbursements to Owner/Developer shall be made in quarterly installments commencing on the date payment of Project Revenues are first received by the Town fi.om the Arizona Department of Revenue. Such reimbursements to Owner/Deveioper shall continue until Owner/Developer has been fully reimbursed for the Hartman Road Costs or the date of expiration of this Agreement, whichever first occurs. The reimbursement to be paid by the Town shall be paid only fi.om such Project Revenues received by the Town and shall not be deemed a general indebtedness of Town. 2. Cortaro Farms Road Re¢onal Improvements. The Owner/Developer shall pay to the Town the sum of one hundred thousand dollars ($100,000.00) toward the cost of freeway access improvements and signalization at the intersection of Cortaro Farms Road and Interstate 10 ("Cortaro Farms Road Regional Improvements") upon 2 request by the Tom. The Owner/Developer's contribution shall be returned to the Owner/Developer without interest, upon the State of Axizona's repayment of the costs of the Cortaro Farms Road regional Improvements to the Town. 3. Default. Failure or unreasonable delay by either party to perform any term or provision of this Agreement for a period of ninety (90) days (the "Cure Period") after written notice thereof fi'om the other party shall constitute a default under this Agreement. Said notice shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured, if possible. 4.1 ~. 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 State mail, postage prepaid, if to: The Town: Town of Marana 13251 North Lon Adams Road Marana, Arizona 85653 Attn: Public Works Superintendent with a copy to: Daniel I. Hochuli & Associates 3275 W. Ina Road Suite 109 Tucson, Arizona 85741-2152 Attn: Daniel I. Hochuli, Esq. Owner/Developer: Norman P. McClelland 2228 N. Black Canyon Highway Phoenix, Arizona 85009 with copies to: Owner/Developer Representative: El Dorado Holdings, Inc. 6232 North 32nd Street Phoenix, Arizona 85018 Attn: Deb Bricker Gallagher & Kennedy 2600 North Central Avenue 19th Floor Phoenix, Arizona 85004-3020 Attn: Steven A. Betts, Esq. or to such other addresses as either party hereto may fi.om time to time designate in writing and deliver in like manner. 4.2 Mailing Effective. Notices, filings, consents, approvals and communication given by mail shall be deemed delivered seventy-two (72) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above. 5. General. 5.1 Term. The term of this Agreement shall commence on the date of execution by both parties hereto and shall automatically terminate on the tenth (10th) anniversary of such date; provided, however, that either party hereto shall have the right to extend the term hereof for on (1) additional period often (10) years upon written notice delivered to the other at least three O) months prior to the expiration hereof. 5.2 Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the Town, or Owner/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. 5.3 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 or 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 judgement 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. 5.4 Counter?ans. 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 fi.om one or more counterparts may be removed fi.om such counterparts and such signature pages all attached to a single instrument so that the signatures of all parties may be physically attached to single document. 5.5 Hea0ing 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 provision thereof The Recitals set forth at the beginning of this Agreement are hereby acknowledged and incorporated herein and the parties hereby confirm the accuracy thereof. 5.6 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. 5.7 Further Acts. Each of the parties hereto shall execute and deliver all such documents and perform all such acts as reasonably necessary, fi.om 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 the Property by the Owner/Developer and its successors. 4 5.8 Future Effect. 5.8.1 Time Essence and Successors. Time is of the essence in 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 permitted by law, the Ownera)eveloper'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 o£the Owner/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. In the event of a complete assignment by Owner/Developer of all rights and obligations of Owner/Developer hereunder, Owner/Developer's liability hereunder shall terminate effective upon the assumption by Owner/Developer's assignee, provided that the Town has approved the assignment to such assignee, which approval shall not unreasonably be withheld. 5.8.2 Termination Upon Sale to Public. It is the intention of the parties that although recorded, this Agreement shall not create conditions or exceptions to title or covenants running with 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 purchaser or user thereof and thereupon such lost shall be released from and no longer be subject 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 ~ments which, when imposed upon the Property, shall run with the land in accordance with applicable laws. 5.9 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 Owner/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. 5.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof. Ail prior and contemporaneous agreements, representations and understanding of the parties, oral or written, are hereby superseded and merged herein. 5.11 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 ail 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 set at the expense of the Owner/Developer, in the Official Records of Pima County, Arizona. 5 5.12 Names and Plans. The Owner/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 Owner/Developer in connection with the 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 authority. 5.13 Good Standing: Authority. The Owner/Developer represents and warrants to the other that it is duly formed and validly existing under the laws of Arizona. 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 ans 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. 5.14 Severabilitv. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement, which shall otherwise remain in full force and effect. If any applicable law or court of competent jurisdiction prohibits or excuses the Town from undertaking any contractual commitment to perform any act hereunder, this Agreement shall remain in full force and effect, but the provisions requiring such action shall be deemed to permit the Town of take such action at its discretion.. If, however, the Town fails to take the action specified hereunder, the Owner/Developer shall be entitled to terminate this Agreement. 5.15 Governin~ Law/Arbitration. 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 and the Owner/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 Uniform Arbitration Act, A.R.S. §12-501 et seq., and judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 5.16 Recordation. No later than ten (10) days atter this Agreement has been executed by the Town and the Owner/Developer, it shall be recorded in its entirety, by, and at the expense of, the Owner/Developer, in the Official Records of Pima County, Arizona. 5.17 NO Owner/Developer Representations. Except as specifically set forth herein, including but not limited to the payment and improvements contemplated under sections 2 and 3, nothing contained herein or in the Zoning shall be deemed to obligate the Town or the Owner/Developer to complete any part or all of the development of the Property, and the Zoning shall not be deemed a representation or warranty by the Owner/Developer of any kind whatsoever. 5.18 Default and Remedies. Ifany party to this Agreement is in default under any provision of this Agreement the non-defaulting party shall be entitled, without prejudice to any other right or 6 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. 5.19 Town Approval. 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. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. APFROVED AS TO FORIVl AND AUTHORITY The forgoing 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. ~-~ Attorney for Town of Marana TOWN OF MARANA, an Arizona mun/cipal corporation Mayor ~ ATTEST? /Town Clerk 7 NORMANP. MCCLELLAND, a married man dealing with sole and separate property STATE OF ARIZONA ) ) SS. County of Pima ) The foregoing document was acknowledged before me the day of 1996, by Norman P. McClelland, a married man dealing with his sole and separate property. My Commission Expires: Notary Public FRANCES H. MCCLELLAND, a single woman STATE OF ARIZONA ) ) SS. County of Pima ) The foregoing document was acknowledged before me the 1996, by Frances H. McClelland, a single woman. day of My Commission Expires: Notary Public SHAMROCK FARMS COMPANY An Arizona corporation Its: STATE OF ARIZONA ) ) SS. County of Pima ) The foregoing document was acknowledged before me the 1996, by. __, the Farms Company, an Arizona corporation. day of of Shamrock My Commission Expires: Notary Public 9 LIST OF EXHIBITS Map of the Property Legal Description of the Property Zoning 10 E - ~ - ':',go~aro Farms Road~ '-v,. Pima Farms Ro SCALE: 1" = 1200' O~der NO. 136480-T B LEGAL DESCRIPTION That pprt of the South half of the North half of Section 26, Towns~ip 12 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Arizona, described as follows; SEGINNING at a point on the East line of the Southwest quarter of the Northeast quarter of said Section, 30 feet North of the Southeast corner thereof; thence West parallel to the South line thereof, a distance of 408.0 feet; thence North 408.0 feet from and parallel with the East line, a distance of 325.0 feet;. thence West 355 feet from end parallel to the South line thereof, a distance of 330.0 feet; thence South 738 feet from and'parallel to the East line thereof, a distance of 325 feet;. thence West parallel to the South line thereof, a distance of 299.8 feet to the point of intersection with a line parallel with and 40 feet from the Northeasterly right of way line of the Southern Pacific Railroad; thence Northwesterly 40 feet fro~ and parallel with.t~s said Northeasterly.right of way line of the Southern Pacific Railroad, a d~stance of 915.5 feet to a point; thence North 604.8 feet to a point on thc North lips of the South half of the North half of said Section 26, dastant 600 feet East from its intersection with the Northeasterly right of way line of the Southern ~acific Railroad; thence East slonq said North lin~, a distance cf 1963.5 feet, more or less, to the Northeast corner of the Southeast quarter of the Northeast q~arter of said Section 26; thence South along the East line thereof, a distance of 1289.6 feet to a point which is 30 feet North of the South line of said Section 26; thence West parallel with said South line, a distance of 1311.9 feet to the POINT OF BEGINNING;. EXCEPT therefrom that parcel conveyed to Tucson Gas & Electric Company, an Arizona corporation,, by Deed_rucorded in Docket 2510, at Page 184, being all that Dart o= the above described ~roperty lying within a strip of land. 200 feet in width, Northeasterly of, adjacent to and parallel with the SoutheTn Pacific Railroad Northeasterly right of way line; but TO~ET~ER with the easement for laying, construc~in~ and maintainln~ a railroad spur track whic~ was reserved to the Grantor, their successors and assigns ~n said Deed recorded Docket 2~10, Page 184. (continued) Order No. 136480~T (Legal Description - Page 2) PARCEL 2: · . . The South half of the.Northwest quarter of the Northeast quarter of Section 26, Township 12 South, Range 12 East, ~ila and Salt River Base and Meridian,. ~imaCounty, Arizona. . That portion of the Southwest q~artar, of the Northeast q~.arter of Section 26, Township 12 South, Range 12 East, Gila and Salt River Base and Meridian, Ptma County, Arizona described as follows: BBGINNING at a 9oint which is 408 feet West of and 30 feet North of =he Sou=beast corner of sai~ Southwest quarter of the Nor=beast quarter of said Sec=ion 26~ thence wes=, 30 feet North of and parallel to said South line, thence Nor=h, 738 feet West of and parallel to the East llne thereof, 325 feet; thence East, 355 feet North of and parallel to the South line thereof, 330 feet; thence South, 405 feet West of ahd parallel to the East line thereof, 325 feet to the POINT OF BEGINNING.