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HomeMy WebLinkAboutResolution 98-032 development agreement with shamrock farmsMARANA RESOLUTION NO. 98-32 A RESOLUTION OF THE TOWN 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 SETTING UP A REIMBURSEMENT MECHANISM FOR COSTS OF PUBLIC iNFRASTRUCTURE AND TRAFFIC IMPROVEMENTS ALONG HARTMAN ROAD. WHEREAS, Norman P. McClelland, Francis H. McClelland and Shamrock Farms Company is the owner of approximately 98.7 acres located on the northeast comer of Cortaro Farms Road and Interstate 10; and WHEREAS, the Owner intends to develop the property and construct public infrastructure and the Town approved the rezoning of the property by the adoption of Ordinance No. 95.30, a condition of which is that the Developer and the Town enter into a development agreement setting up a reimbursement mechanism for costs of public infrastructure and traffic improvements along Hartman Road; and WHEREAS, a Development Agreement between the Town and the Developer has been drafted for the purpose of setting up a reimbursement mechanism for costs of public infrastructure and traffic improvements along Hartman Road incurred by the Developer; 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, Francis 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 and Norman P. McClelland, Francis H. McClelland and Shamrock Farms Company, is approved and the Mayor is authorized to execute the Development Agreement on behalf of the Town. Marana, Arizona Resolution No. 98-31 Page 1 of 2 PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 7th day of April, 1998. ~ ~close APPROVED AS TO FO~'~. ~'""~Daniel J. Hochuli ~ Town Attorney Marana, Arizona Resolution No. 98-3I Page 2 of 2 SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 oqCKET: 10776 BE: 196 NO. OF PAGES: 14 SEQUENCE: 19980530049 04/16/98 AG 09:32 ,'\'-f \00 ~/\ . , . F. ANN RODRIGUEZ~~CORDER RECORDED BY: DSC DEPUTY RECORDER 1212 ROOE MAIL AMOUNT PAID $ 12.50 EXHIBIT A ORiGINAL When recorded, return to: Town of Marana 13251 N. Lon Adams Road Marana, AZ 85653 DEVELOPMENT AGREEMENT TillS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and NORMAN P. MCCLELLAND, a married man dealing with his sole and separate property, FRANCES H. MCCLELLAND, 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 Maran a 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 entered 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. NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises -. - - -.. AGREEMENT 1. Hartman Road Construction and Reimbursement. 1.1 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 right-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 Hartman Road Improvements ("Hartman 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 percent (50%) of the transaction privilege taxes received from the commercial and retail establishments ("Commercial Project") to be located on the Property, excluding revenues received by the Town from 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 from the Arizona Department of Revenue. Such reimbursements to Owner/Developer 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 from such Project Revenues received by the Town and shall not be deemed a general indebtedness of Town. 2. 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 from 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. 3. Notices and Filings. 3.1 Manner of Serving. All notices, filings, consents, approvals and other communications provided for herein or given in connection herewith shall be validly given, filed, made, transmitted 2 10776 197 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 Maran a 13251 North Lon Adams Road Marana,Arizona 85653 Attn: Public Works Superintendent with a copy to : Daniel J. Hochuli & Associates 220 E. Wetmore Road, Suite 110 Tucson, Arizona 85705-1748 Attn: Daniel1. Hochuli, Esq. Owner/Developer: Norman P. McClelland 2228 N. Black Canyon Highway Phoenix, Arizona 85009 with copies to: Owner/Developer Representative: EI Dorado Holdings, Inc. 6232 North 32nd Street Phoenix, Arizona 85018 Attn: Tim Wright Jennings, Strouss & Salmon, PLC Two N. Central, 16th Floor Phoenix, Arizona 85004-2393 Attn: John R. Christian or to such other addresses as either party hereto may from time to time designate in writing and deliver in like manner. 3.2 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. 4. General. 3 10776 . 198 4.1 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 (3) months prior to the expiration hereof 4.2 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. 4.3 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. 4.4 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 single document. 4.5 Heading 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 4.6 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 4.7 Further Acts. Each of the parties hereto shall execute and deliver all such documents and perform all such acts as reasonably necessary, from time to time, to carry out the matters contemplated by this Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good faith and process promptly any requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by the Owner/Developer and its successors. 4.8 Future Effect. 4.8.1 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 Owner/Developer's rights hereunder may only be assigned by a written instrument, recorded in the Official Records of Pima County, Arizona, expressly assigning such rights, and no obligation of the 4 10776 . 199 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 ofa 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. 4.8.2 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 oflonger 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 assessments which, when imposed upon the Property, shall run with the land in accordance with applicable laws. 4.9 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. 4.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof All prior and contemporaneous agreements, representations and understanding of the parties, oral or written, are hereby superseded and merged herein. 4.11 Amendment. No change or addition is to be made to this Agreement except by a written amendment executed by the parties hereto to which such amendment shall apply. Any amendment not executed by all parties hereto shall only be effective as to the parties that execute such amendment. Except as expressly provided herein, the Town must approve any change or addition to this Agreement. Within ten (10) days after any amendment to this Agreement, such amendment shall be recorded by, and set at the expense of the Owner/Developer, in the Official Records of Pima County, Arizona. 4.12 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 '0776 .200 4.13 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. 4.14 Severability. Ifany 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. 4.15 Governing 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. ~ 12-50 1 et seq., and judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof 4.16 Recordation. No later than ten (10) days after 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. 4.17 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. 4.18 Default and Remedies. If any 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 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. 6 10776 20\ 4.19 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. APPROVED AS TO FORM 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 ofMarana. ~ ~OChUli, Esq. Attorney for Town of Maran a TOWN OF MARANA, an Arizona municipal corporation By -~J 0t'e. -M or I ATTEST: 7 10776 202 NORMANP. MCCLELLAND, a married man dealing with sole and separate property --D g..^-", a<<- I tII, &~~ STATE OF ARIZONA ) ) ss. County of Pima ) The foregoing document was acknowledged before me the Q. 7-ft...... day of ~n)~ ( =f ' 1998, by Norman P. McClelland, a married man dealing with his s~leueparate property. NOuu).~ ~7-"Jl~ My Commission Expires: Ie ANNJ~PUlSE NatIry PubIc . ..... of ArIzIIna ~P. ~, /~ 1 '\ c..> ;. MARICOPA CCUlTY ~ 7, (?\C/ MyConvn.&phaStlt 19.2001 FRANCES H. MCCLELLAND, a single woman ~ PI. 77Je~ STATE OF ARIZONA ) ) ss. County of Pima ) The foregoing document was acknowledged before me the cfl.- / 7/.\. day of ::lhYr.J~r 1 1998, by Frances H. McClelland, a single woman. ,.,----."..,--------- My Commission Expires: 0fflClM, M. (i) ANNJEANEnE PUlSE NataIy PubIc . "* of MzonI MARICOPA COlII1Y My Comm. Elc;lirU Sept. 19.2001 _~L,{f. / C), ;) DO I 8 '0776 203 SHAMROCK FARMS COMPANY An Arizona corporation ,. tt("~?/ By: Its: STATE OF ARIZONA ) ) ss. County of Pima ) The foregoing document was acknowledged before m~e d (J\. day of :kJ? rv()..r i 1998, by Nrrrl'V\.aM. P IYl~C)VJJ/~P , the ~("I"J. ,~ Shamrock Farms Company, an Arizona corporation. / . / .. /.) ~k~~~ Notary ( lic f(i) ANNJEANE1itPULSE I IIaCary NIle . stili or ArIzona MARICOPA cotII1Y Mr ComIll. &pIna..... 1,. 2001 , of My Commission Expires: _~ /0;/ daJ/ 9 '07.16 ,204 LIST OF EXHIBITS A. Map of the Property B. Legal Description of the Property C. Zoning '0-116 205 10 - - -. - -- -- ... . --.,. ur . .......t<HNH c P.02 l..-_.___ c SCALE: 1" = 1200' REGIONAL LOCATION '0776 "206 - - -. .~~ ... I '-''''N. Ut-. MARANA ...~..- ...,-.. t t '''11: rlCu", .1. DORADO HOLDINCS !520 6S2 26!54 Ig. IS". ~&I!l3&4J P.03 PAC; 3 Order No. 136480.T EXHIBIT 8 LEGAL ~SCR:rPT:tON .PARC~UI That ~.rt of the South half of the North halt o{ Section 26, Tbwn.hip l2 South, Range 12 ...tt G!la and SAlt aiver Baa. and M.~idi.n, Pima County, ~1I:ona, a.C:l"ibed a. follow. I BEGINNING at a point on the lalt line of the sOu~hWe8t quarter of the No~theast ~u.rter of 811d Section, JO teet North of the Southeast eorner tberee!, th.nc. West p.rallel to che South line thereof, a di.~anee of '08.0 feet; th_nC8 North 408.0 teet trom and parallel with the Ea.t line, & distance of 325.0 feetr. . tbence West 355 teet from an~ parlllel to tho Sou~h line therlof, a dls~ance of 330.0 tlet; thenge South 7J8 feet from and parallel to the Rant line thoreot, << distane. o~ 325 feet/- thence Hest pa~allel to the South line thereof, a di_=ange or aS9.8 feet to tbe point ot inter,eCtion with ~ l!n~ parQllel With and 40 f8St t~m the NOrth.asterly ri~ht Qf way lino 0: the Soutnorn Pacific Railroad; thenee Northwe.terly 40 t.et from ~nd parallel ~i~h the 8a~d Nor~h'a8t.~lY_~i9ht of war line of the SQ~thern Pacific Railroad, a di8~anc. ot 9 5.5 feet to a point; thence Nor~h 604.8 feet to a point on che No~th line of the South halt of the North halt of .aid Section 26, distant 600 teet last f~o~ 1t. 1n~er..ction with the North~asterly righc of way line of the Southern Pacific Railroad; theneG Ease slong said North lin~, . di.tance ot 2~63.S le.t, mOre o~ le.., to the Northea_e Corner of the Southeast quarter of the Northea~t ~arter at .aid Segt10n aft thene. South along the malt lin~ thereof, a distance of 1299.6 f.et to · point which 1. 30 teet North of the SO~th line ot .aid Section 261 thence ~..t parallel with .aid South l1ne, a di'~anca of 1311.9 teet to th~ PO!~ OF B2Gr~ING,. . ;XQaPT ~hor8trcm .thae paroel eOnYeyed to TU~.on Gas & 11ectrie COl1'lJ)any, an AriZQ1UI. CO.qtOrat1on,.!:tY o.ed :"1IIc;ordec1 in Coc:ket 2S~O, at Page 184, ~1ng all that parc or the above de.eribed P~operty lYlng w1thtn << .tr1p of land. 200 t..t in wi4eh, Morthea8terly of, <<diacent co and parallel w1th the Southern Paa1t!e Railroad Nortn...terly right ot way line, but TOGETHER with th. eaeement tQ~ laying, oon'trueti~g and m.1ntaining a railroad ap~ track which wa. r...rved CO the Grantor, tbe1r aueee..cra and ..a1gn. 1n ..14 Doe4 "oOrded 111 Doo~et 2510, Page 184. (CQnI:in1.l8d) 10776 207 - . . -~ .... I U"lN. UF. MARANA '"U..W".I IS .4:1 PROM"~t. DORADO HOI.DINOS ~20 6.82 2654 la. I ,11&13&43 P.04 PMI 4 Ordur NO. 136480.r CL.~al Oelcr1pt~oA Page 2) DRCEL 2, .,. ... The South hal~ of the Northwest quarter of ~h~ Nor~he..t qu.rte~ ot Section a6, To~.h!p 12 louth, Range 1~ Ea.~, Gila and a_It Kiver Sase and Meridian, Pima cQ~~y, Ar1zona. l'ARCt:!f. ;s" Tha~ po~tion of the Southwe.t ~ter or the Northeast ~.rter ot Sact10n ~6, TO~btp 12 South. ~nie 12 E~.t, Gila and Salt Rivor Base and Me~idian, P1mt Ooun~y, ~1zona 4aacr1bed .e follow. I B!GINN%~Q at a po1nt ~ht~h 1. .04 feet West of an4 30 I.et North of the Southeast eorner ot 8.14 Southwest qu.~ter 0' the No~thea.t quart.~ at 8ai4 Secti~n ;6, . thana. West, 30 teat North ot and parallel to aaid South 11n., ~30 t..t; thence North, ?38 ~.et w..t of and p.~.llel to the Eale line tn.~eof, 325 ~e8tl thence E.st, 355 f.et North of and parallel to the South l1ne thereot, 330 feet; th~nce Sou~h, 408 feet Ne.t of .and parallel to th~ iaat line theroo~, 325 teee eo th. POINT or B~QINNING. ~ " .... 10776 208 .'j i. 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