HomeMy WebLinkAboutResolution 2001-040 development agreement with arizona pavilions development inc MARANA RESOLUTION NO. 2001-40
A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF THE TOWN OF
MARANA, ARIZONA, AUTHORIZING THE TOWN TO ENTER INTO A
DEVELOPMENT AGREEMENT WITH ARIZONA PAVILIONS DEVELOPMENT
INC.
· WHEREAS, Arizona Pavilions Development, Inc. (the Developer) is the owner of
vacant property located south of Cortaro Road, between the Santa Cruz River and the I-
l0 frontage road; and
WHEREAS, the Developer has entered into a contract to sell property to Wal-
Mart Stores, Inc. for the purpose of constructing a 200,000 square foot superstore on the
site; and
WHEREAS, the Developer will construct certain public infrastructure as depicted
on Exhibit B of the Development Agreement attached hereto; and
WHEREAS, the Developer seeks reimbursement for the construction of public
infrastructure facilities; and
WHEREAS, the growing population of the Town of Marana places increasing
demand upon the existing public infrastructure in the region; and
WHEREAS, the Town desires to develop new roads to meet the demands that are
placed upon the Town's facilities as a consequence of increasing population and the
proportionate increase in public infrastructure usage brought about by new growth; and
WHEREAS, the Town of Marana believes that construction of the public
infrastructure as depicted in Exhibit B of the Development Agreement attached hereto
will directly improve the capacity of the Town's existing public roads; and
WHEREAS, the Town of Marana believes that construction of the public
infrastructure will directly benefit the Town of Marana and its residents through
augmentation of revenues and development of commercial facilities.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town
of Marana, Arizona, that the Mayor is authorized to execute the Development Agreement
with Arizona Pavilions Development, Inc., attached hereto, for the purpose of
constructing public infrastructure and reimbursing the Developer for the costs of said
public facilities.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana,
Arizona, this 3rd day of April 2001.
ATTEST:
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DEVELOPMENT AGREEMENT
_C' J I.
THIS AGREEMENT is made as of OJfrTUvt .J0 :11, 2001 between THE TOWN
OF MARANA, an Arizona municipal corporati n (the "Town"), and ARIZONA PAVILIONS
DEVELOPMENT, INC., an Arizona corporation ("Developer").
Recitals
A. Developer owns the real property legally described in Exhibit 1 annexed
hereto (the "Property"). Developer has entered into a contract to sell approximately 20
acres of the Property to Wal-Mart Stores, Inc. for a 200,000 square foot superstore, and
Developer intends to develop the balance of the Property as a retail power center with so-
called "big box" and smaller shops.
B. Developer and the Town enter into this development agreement to provide
for public infrastructure improvements to facilitate the development of the Property,
consistent with the specific plan and approved zoning for the Property. On ~ 3 ,
2001 the Town Council adopted Resolution No. J ~q) i - 'f~, which a proves and
authorizes the execution and delivery of this Agreement.
C. Arizona Revised Statutes S 9-500.05 authorizes the Town to enter into a
development agreement with a landowner or any other person having an interest in real
property located within the Town to faalitate development of the Property by providing for,
among other things, the conditions, terms, restrictions and requirements for public
infrastructure and the financing of public infrastructure.
D. In approving this Agreement, the Town Counal additionally finds that all
activities relating to the development of the Property are economic development activities
within the meaning of Arizona Revised Statutes S 9-500.11, that all expenditures by the
Town pursuant to the Agreement constitute the appropriation and expenditure of public
monies for and in connection with economic development activities and that it is
appropriate to provide the Developer with the benefits in this Agreement as an inducement
to the Developer to construct, own and operating a major retail establishment in the Town.
E. The Town Council further finds that development of the Property will
substantially increase economic development activity in the Town by (i) significantiy
increasing sales tax revenue within the Town; (ii) creating jobs within the Town; (iii)
encouraging retail development of property in the vicinity of the Property; and (iv)
redirecting the public's retail expenditures to businesses located \i\1thin the Town's
jurisdictional I imits.
F. The Town Council further finds that the economy of the Town is in need of
economic stimulation, and that the Town will receive good and adequate consideration for
its performance of the provisions of this Agreement.
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NOW THEREFORE, in consideration of the promises and premises contained
herein, and othergood and valuable consideration, the receipt and sufficiency of Vvtlich is
hereby acknowledged, the parti es agree as follows:
Covenants
1. Public Infrastructure. In the event that the Developer elects to develop the
Property, then the Developer shall construct (or cause to be constructed) the offsite
improvements referred to in the Description of Public Infrastructure attached hereto as
Exhibit 2 (the "Public Infrastructure"). The Developer shall have the right to add to the
scope and extent of the Public Infrastructure lhrough change orders approved by the
Town, which approval shall not be unreasonably withheld or delayed.
2. Bids. The Developer shall bid and award the contract or contracts for the
actual construction (excluding design) of all or portions of the Public Infrastructure in
accordance with applicable public bidding requirements; provided however; at the sole
discretion of Developer, such public bidding may exclude any requirements for payment
and performance bonds.
3. Riqht ofWav. The Town shall grant to (or obtain on behalf of) the Developer
any and all easements, rights of entry, rights of way, and other use rights on or about all
real property owned or controlled by the Town upon, through or under which any portion
of the Public Infrastructure will be installed or which are useful or necessary for the
Developer to complete construction of the Public Infrastructure. Any necessary rights of
way which are owned by Developer or its assignee shall be transferred to the Town at no
cost to the Town.
4. Requirements. The Town shall use its best efforts to assist the Developer
in obtaining all permits and approvals which are issued by any third party public orquasi-
public entity and which are necessary for the development, construction and operating of
the Public Infrastructure. Construction of the Public Infrastructure shall satisfy all of the
requirements of the Town for public improvements in connection with the development and
operation of the Property and any expansion, rehabilitation or reconstruction. The
Developer shall not be required to construct any additional public improvements in
connection with the proposed development and operation of the Property, or any
expansion, rehabilitation or reconstruction.
5. Rebate of Costs. The Developer shall pay all costs associated with the
construction and installation of the Public Infrastructure including (without limitation) labor,
materials, design, pernitting, legal, project management, project supervision and
development fees (collectively the "Costs"), and the Town shall rebate the Costs to the
Developer set forth below. In order to qualify for rebate, the Developer shall submit to the
Town all receipts, invoices and other instruments or documents reasonably necessary to
evidence the payment by Developer of the Public Infrastructure Costs for which
reimbursement is requested.
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(a) The following special definitions apply to this Agreement:
(1) "Arizona Pavilions Sales Tax" means all sales tax (however named)
generated by retail sales on the Property, \IIA1ich are actually received
by the Town, whether levied and collected by the Town or levied by
the Town and collected by the State of Arizona and returned to the
Town;
(2) "Rebate Amount" means the Costs (as defined in section 5 above),
not exceeding One Million, Seven Hundred Fifty Thousand
($1,750,000.00) Dollars in the aggregate;
(3) "Rebate Period" means the period commencing ninety (90) days after
the opening of a Wal-Mart store on the Property and ending on the
date that is the earlier of (i) ten (10) years following Developer's
receipt of the first installment payment from the Town on account of
the Rebate Amount, or (ii) payment in full of the Rebate Amount;
(b) Each year, the first $300,000 in Arizona Pavilions Sales Tax will be retained
by the Town. Thereafter, the Town shall pay Fifty (50%) Percent of all Arizona Pavilions
Sales Tax to Developer throughout the Rebate Period. Payments by the Town to the
Developer shall be made within ten (10) business days following confirmation and
verification of tax revenues received, commencing in the month following the Town's
receipt of the first $300,000 in Arizona Pavilions Sales Tax in each calendar year.
(c) In order to assist the Town in tracking amounts of Arizona Pavilions Sales
Tax, Developer shall timely provide the Town, from time totime, with a list of all tax paying
persons and entities( and shall otherwise provide the Town with such information as the
Town may reasonably request) to be used in the calculation of any payments due
hereunder.
(d) Reimbursements of Costs provided for herein shall only be payable to the
Developer as provided herein if the contracts for construction are bid and awarded in
compliance with any applicabl e public biddi ng and contract award requirements.
6. Dedication. The ToW'l shall accept the dedication of the Public
Infrastructure, or any distinct portion thereof promptly following completion of said
infrastructure satisfactory to the Town. Thereafter, the Town, at its sole cost and expense,
shall maintain, operate, repair and replace the Public Infrastructure as and when required
to keep the Public Infrastructure in good condition and repair.
7. Approvals. The Town shall obtain, and shall maintain all necessary
approvals, permits, consents and authorizations from all governmental authorities and
other persons or entities necessary for the Town ownership, maintenance, operation,
repair and replacement of the Public Infrastructure.
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8. Representations and Warranties. The Town acknowledges that the
Developer is entering into this Agreement and expending considerable sums in design and
engineering fees associated with the Publi c Infrastructure in rei iance on the findings,
agreements, representations and warranties of the Town contained in this Agreement.
The Town acknowledges that the Developer shall continue to expend considerable sums
with respect to the same in reliance on the findings, agreements, representations, and
warranties of the Town contained in this Agreement. The Town, warrants and covenants
to the Developer that all ofthe Town's representations, findings, warranties and covenants
set forth in this Agreement are true in all material respects as of the date of this
Agreement. The Town further represents, warrants and covenants to the Developer as
follows:
(a) The Property is located within the municipal limits of the Town.
(b) The Town is a duly organized, validly existing municipal corporation in the
State of Arizona. The transactions contemplated by this Agreement, the execution of this
Agreement and the Town's performance hereunder have been duly authorized by all
requisite action of the Town and no other approval or consent is required for this
Agreement to be binding upon the Town. The individuals executing this Agreement have
all necessary authority to enter into this Agreement and to bind the Town. The execution
of this Agreement and the consummation of the transactions contemplated hereby will not
result in any violation of, or default under, any term or provision of any applicable
agreement, instrument, law, rule, regulation or official policy to which the Town is a party
or by which the Town is bound.
9. Default. Failure or unreasonable delay by either party to perform any term
or provision of this Agreementfor a period often (10) 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. 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 (and each party
hereby waives the defense that the other party has an adequate remedy at law), or, in the
alternative, to terminate this Agreement and to exercise any or all other remedies available
to it at law or in equity.
10. Notices and Filinqs.
(a) Mannerof ServinQ. All notices, filings, consents, approvals and other
communications provided for herein or given in connection herewith shall bevalidlygiven,
filed, made, delivered or served if in writing and delivered personally or sent by registered
or certified United States Mail, postage prepaid, if to:
The Town:
Town Manager, Town of Marana
13251 North Lon Adams
-4-
Marana, Arizona 85653
And to:
Town Attorney
Daniel J. Hochuli & Associates, P.C.
Daniel J. Hochuli
220 East Wetmore Road, #110
Tucson, Arizona 85705
Developer:
Arizona Pavilion s Development, Inc.
8215 North Cortaro Road
Tucson, Arizona 85743
Attn: Gregory Wexler
And to:
T. Patrick Griffin
Haralson, Miller, Pitt & McAnally, P.L.C.
One South Church Avenue, Suite 900
Tucson, Arizona 85701
Or to such other addresses as either party hereto may from time to time designate in
writing and delivery in a like manner.
(b) Mailinq Effective. Notices, filings, consents, approvals and
communication given by mail shall be deemed delivered upon receipt.
11 . General.
(a) Waiver. No delay in exercising any right or remedy shall constitute
a waiver thereof, and no waiver by the Town or Developer of the breach of any rovenant
of this Agreement shall be construed as a waiver of any preceding or succeedi ng breach
of the same or any other rovenant or condition of this Agreement.
(b) Attornev's Fees. In the event either party finds it necessary to bring
any action at law or other proceeding against the 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 judgment is secured
by said prevailing party, all such costs and attorneys' fees shall be included therei n, such
fees to be set by the court and not by jury.
(c) Counterparts. This Agreement may be executed in one 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 to that the signature of all parties may be physically
attached to a single document.
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(d) Headings. The descriptive headings of the paragraphs of this
Agreement are inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
(e) 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.
(f) 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 plan and specification, pi at or permit approvals or revi sions, and other
necessary approvals relating to the development of the Property by Developer and its
successors.
(g) 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 similar arrangement between 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.
(h) Entire Aqreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof. All prior and
contemporaneous agreements, representations and understandings of the parties, oral or
written, are hereby superseded and merged herein.
(i) Amendment. No change or additions to be made to this Agreement
except by a written amendment executed by the parties hereto.
U) Names and Plans. 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
Developer in connection with the Property and the Public Infrastructure.
(k) Governinq Law. This Agreement is entered into in Arizona and shall
be construed and interpreted under the laws of the State of Arizona. In particular, this
Agreement is subject to the provisions of A.R.S. S 38-511.
(I) Reformation. Should any term, provision, covenant or cond ition of this
Agreement be held to be void or invalid, the parties shall reform this Agreement to conform
as closely as possible to the original intent hereof.
(m) Excused Delav in Performance. In addition to specific provisions of
this Agreement, for a period of time equal to the period of the force maieure delay,
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untimely performance by a party hereto shall not be deemed to be a default where delays
or inability to perform are due to war, insurrection, strikes, slo\M:lowns, lockouts, riots,
floods, earthquake, fires, casualties, acts of God, acts of the public enemy, epidemics,
quarantine restriction, freight embargoes, lack oftransportation, governmental restrictions
or priority, litigation, severe weather, inability (when the party which is unable to perform
is substantially without fault) of any contractor, subcontractor or supplier to perform acts
of the other party, acts or the failure to act of any utility, public or governmental agent or
entity and/or other causes beyond the reasonable control of said party. In the event that
a party hereto is unable to perform due to an event constituting force maieure as provided
for above, then the time for performance by said party shall be extended as necessary for
a period of time up to the period of the force maieure delay.
(n) Severabilitv. Every provision of this agreement is, and will be
construed to be, a separate and independent covenant. If any provision of this agreement
or the application of the same is, to any extend, found to be invalid or unenforceable, then
the remainder of this Agreement or the application of that provision to circumstances other
than those to which it is invalid or unenforceable, will not be affected by that invalidity or
unenforceability, and each provision of this agreement will be valid and will be enforced
to the extent permitted by the law, and the parties will negotiate in good faith for such
amendmen1s of this agreement which may be necessary to achieve its intent,
notwithstanding such inval idity or unenforcea bility.
THIS AGREEMENT shall be binding upon the parties hereto, their administrators,
heirs, successors or assigns and can be changed only by written agreement signed by all
parties.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the date
and year first above written.
ARIZONA PAVILIONS DEVELOPMENT, INC.,
An Arizona corporation
ATTEST:
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TitleJr'e-;;.; J..~-t.
THE TOWN OF MARANA
By
Title
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APPROVED AS TO FORM:
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STATE OF ARIZONA
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) ss.
Cou nty of Pi ma )
~ foregoing instrument was acknowledged before me this 3tt day of
--A PfNILl02~21~vZ?~~:r,~t:ifzgnQ 'c~p~~~ ~-f/o~GI of
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My Commission Expires:
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.. OFFICIAL SEAL '
MARGARET LYNN WARDE
. '.. Notary Public. Arizona
PIMA COUNTY
,-' . My Comm, Exp, Aug. 29,2003
-8-
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss
COUNTY OF SAN DIEGO )
On September 21, 2001 before me the undersigned, a Notary Public in and for
said State, personally appeared David P. Dolgen , personally known to me or proven
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
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en (! ... ,;~ Notary Publlc-Callfornia !!!
W ~ SAN DIEGO COUNTY ....
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Notary's Sign e
Seal
EXHIBITS
1. Legal Description of Property
2. Description of Public Infrastructure to be constructed by Developer
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Exhibit 1
The Property
Current I-,egsll:
Parcels 65 and 66 of Contmental Ranch Business Park
and Lot 14,56 & 57 ofPeppertrec Ranch Business Park
New Legal:
Block 1 thru 5 of the COn!inental Ranch Power Center
and Lots 56 & 57 of Pepper tree Ranch Business Park
~
N. T.5.
BLOCK PLAT
CONTINENTAL RANCH POWER CENTER
PARCELS 6~ AND 66
WLB JOB NO. 186031-K-065
12 OCT 99
OJ!~~/2001 07:46
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EXHIBIT 2
Public Infrastructure
The new Arizona Pavilions Drive shall be It 5 la.ne section, 72 foot wide and mcluding 5
foot sidewalb on either side and landscaping. The project shall be used as a wet and dry
utility corridor which shall include sewer, water, phone, liber optics, el~tric. cable. gas
and off site water extensions required in the plans approved by the Tucson Water
Department. An engineering costs, developer supervision, permits, sales tax and
contingencies shall be included. The rQad shal1 begin at the south end terminus of
Arizona Pavilions Drive and Cortano Road extending south approxirr.at:!y 2,700 feet, to
II pornt south of BurlingaI1le and Business Park Drive. Burlingame shell be reconstructed
from the 1-10 frontage 1"Oae west to Business Park Drive/new Arizona Pavilion.s Drive
witb a 1 Y: asphalt overlay, sidewalks and landsc:aping with the removal on the north side
of the road of the wedge curb tJld replaced with vertical curb and gutter.
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PI.QJECT DAtA
Se'f SIn AREA ! 71..~ .c
LOT COVE RACE Z.),Z'i4,
l'ARJONG PROVlOED 3,790..".c..
(54/1000)
BUlLOL'lG AREAS
Majora A ~ I
Shops
Parls
Subtotal
<:iude" Ctr5/TI.S
MajorA
M..in~B
Grand Total
497.?50 sf
38,000 sf
1!700Q.jl
69Z,7.50 sf
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11,000 sf
23.00D sf
726.750 III
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