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HomeMy WebLinkAboutResolution 97-007 o'reilly development agreementMARANA RESOLUTION NO. 97-07 A RESOLUTION OF THE MAYOR AND COUNCIL OF ~ TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING THE TOWN TO ENTER INTO A DEVELOPMENT AGREEMENT BY AND BETWEEN THE TOWN OF MARANA AND O'REILLY MOTOR CO. FOR THE PURPOSE OF SETTHqG UP A REIMBURSEMENT MECHANISM FOR COSTS OF PUBLIC INFRASTRUCTURE AND TRAFFIC IMPROVEMENTS ON TH~ SOUTHEAST CORNER OF ORANGE GROVE ROAD AND THORNYDALE ROAD INCURRED BY THE DEVELOPER~ WHEREAS, Randor Orange Grove Corporation is the owner of approximately 17.6 acres located at the southeast corner of Orange Grove and Thornydale Roads; and WHEREAS, the Developer, O'Reilly Motnr Co., intends to develop the property and construct public infrastructure; and WHEREAS, a Development Agreement between the Town and the Developer has been dinfleA for the purpose of setting up a reimbursement mechanism for costs of public infrastructure and txaffic improvements on the southeast comer of Orange Grove and Thornydale Roads 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 Mararia and O'Reilly Motor Co., 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 O'Reilly Motor Co., for the purpose of setting up a reimbursement mechanism for reimbursement for public infxastructure and traffic improvements on the southeast comer of Orange Grove and Thornydale Roads, is approved and the Mayor is authorized to execute the Development Agreement on behalf of the Town. PASSED AND ADOPTED bythe Mayor and Council of the T~(~ of/(Ma~zona, this 4th day of February, 1997. ~/' /~-~,~-~ AP~0/VED/A~ ~'~'~'Daniel ~. Hochuli Town Attorney ED HONEA, Mayor M~. A~ ~o~,~No. ~7.o7 Page 1 of 1 F. ANN RODRIGUEZ, RECORIk~_x ~ECORDED BY: CML · DEPUTY RECORDER · ~ 1951 ROOA SMARA TOWN OF MARANA ATTN: TOWN CLERK 13~51N LON ADAMS RD MARANA AZ 85653 M~ana, AZ85653 DOCKE0 PAGE: NO. OF PAGES: SEQUENCE: AG MAIL AMOUNT PAID 10498 496 10 9703487e 03/10/97 11:38:00 $ 10.50 DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and O'RIELLY MOTOR COMPANY, an Arizona corporation, its assignee or designee ("Owner/Developer"), for the development of certain property situated at the southeast comer of the intersection of Orange Grove and Thornydale Roads. RECITALS A. The Owner/Developer is negotiating a purchase 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"). This Agreement shall not have effect if Owner/Developer does not become the owner of record of the Property within sixty days of execution of this Agreement by both parties. 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 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. D. The Town and the Owner/Developer recognize that the Town will benefit significantly by the Owner/Developer's funding and construction of on-site Drainage Way Coverings, as described in Section 1.2 below (the "Project"). Therefore, the Town desires to reimburse the Owner/Developer for the Drainage Way Coverings Costs, as defined in Section 1.3 below, from transaction privilege tax revenues received from commercial and retail establishments to be located on the Property. E. The Town and the Owner/Developer also recognize the need for construction of coverings for the remaining sections of the Drainage Ways on the Property. Therefore, the Town will extend an option to Owner/Developer, its successors and assigns, to cover the Drainage Ways and receive reimbursement from the Town for those costs, subject to Council approval of construction plans, from transaction privilege tax revenues received from all commercial and retail establishments to be located on the entire Property. Owner/Developer's right to exercise this option shall be subject to the Town's approval. 10498 496 or to such other addresses as either party hereto may from 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 in twelve years, plus a period of time to allow for full reimbursement of costs for covering the remaining Drainage Ways should Owner/Developer exercise its option pursuant to section 2.1 of this Agreement. 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 judgment 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 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but ail 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 ail parties may be physically attached to a single document. 5.5 Fl~llllg,~gl~t~. The descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions 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 ail 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. 10 98 4 5.8 Future Effect. 5.8.1 Time Essence and Successors. Time is of the essence in this Agreement. All otthe 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 fights, and no obligation otthe 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 ct all rights and obligations of Owner/Developer hereunder, Owner/Developer's liability hereunder shall terminate effective upon the assumption by Owner/Devdoper's assignee, provided that the Town has approved the assignment to such assignee, which approval shall not unreasonably be withheld. 5.9 No Partnership and Thkd 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. All prior and contemporaneous agreements, representations and understandings 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 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. 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. Owner/Developer shall provide the Town with plans and specifications of the Drainage Way Covetings as built. 5.13 Good Standing: Authority. The Owner/Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of Arizona. The Town represents and warrants to Owner/Developer that it is an Arizona municipal corporation duly qualified to do business in the State of Arizona and is in good standing under applicable state laws. The Town further warrants that this Agreement is in proper form and that the Town has the power to enter into this Agreement pursuant to the powers granted to it by the State of Arizona. Each of the parties 10 98 ,500 hereto represents and warrants to the other 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 Subsequently Adopted State and Federal Laws. In the event that state or federal laws or regulations, emoted after this Agreement has been executed, prevent or preclude compliance with one or more provisions of this Agreement, the terms of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. Suspension or modification of terms shall be effected with as little disruption of the intent and spirit of this Agreement as possible. 5.15 Governint 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 Aasoeiation and the Arizona Uniform Arbitration Act, A.R.S. §12-501 et seq.. and judgment 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 al~er 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 1 and 2, nothing contained herein shall be deemed to obligate the Town or the Owner/Developer to complete any part or all of the development oftbe Property. 5.18 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. 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. 10 98 ,501 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~-h~ the Town '"'~aniel J. Hochuli, Esq. Attorney for Town of Marana TOWN OF MARANA, an Arizona municipal corporation By ~ Mayor 0'Rielly MOTOR COMPANY Its: ~ STATE OF ARIZONA ) ) SS. County of Pima ) The fwegoing document was acknowledged before me the 1997, by x3~c~o..n ~ ~ ~ t~ z~/z . Motor Company, an Arizona corporation. My Commis~on Expires: 10 98 ,502 7 Original Exhi~t A ,/ EXHIBIT "B": Property located at the Southeast corner of Thornydale and Orange Grove Roads LEGAL DESCRIPTION Escrow/Title No. 512774 JMS That portion of the Northwest quarter of Section 8, Township 13 South, Range 13 East, Gila and Salt River Base and Meridian, Pima County, Arizona, and of Orange Grove Mobile Estates, Lot 1, a subdivision of Pima County, Arizona in Book 42 of Maps and Plats at Page 40, described as follows: Beginning at the Northwest comer of Section 8; Thence South 87 degrees 49 minutes 45 seconds east, a distance of 100.39 feet to a point; Thence South 02 degrees 10 minutes 15 seconds West, a distance of 75.00 feet to a point on the South right of way line of Orange Grove Road, being the Tree point of Beginning; Thence South 87 degrees 49 minutes 45 seconds East along the South right of way line of Orange Grove Road, a distance of 374.17 feet to the Northwest comer of Lot 212, Grange Grove Mobile Estates, Book 22, page 91; Thence South 01 degrees 47 minutes 34 seconds West along the West line of Lots 212 through 217 of Orange Grove Mobile Estates, Book 22, page 91, a distance of 401.67 feet; Thence South 88 degrees 12 minutes 26 seconds East along the South line of Lot 217, Orange Grove mobile Estates, Book 23, page 91 a distance of 16 feet; Thence South 01 degrees 46 minutes 07 seconds West, a distance of 270.60 feet; Thence South 88 degrees 13 minutes 53 seconds East, a distance of 35.00 feet to the Northwest comer of Lot 332, Orange grove Mobile Estates, Book 22, page 91; Thence South 01 degrees 47 minutes 00 seconds West along the West line of Lots 332 through 289 of Orange Grove Mobile Estates, Book 22, page 91, a distance of 114.57 feet; Thence North 89 degrees 12 minutes 55 seconds West, a distance of 436.98 feet; Thence South 56 degrees 05 minutes 53 seconds West, a distance of 372.65 feet to a point on the East right of way of Thomydale Road; Thence North 33 degrees 53 minutes 21 seconds West along the East right of way line of Thomydale Road, a distance of 226.10 feet; Thence along a curve to the right along the East right of way of Thomydale Road, having a radius of 425.35 feet, subtended by angle of 35 degrees 46 minutes 31 seconds, a distance of 265.59 feet to a point of tangency; Thence North 01 degrees 53 minutes 10 seconds East along the East right of way of Thomydale Road, a distance of 552.68 feet; Thence along a curve to the right having a radius of 25.00 feet subtended by an angle of 90 degrees 17 minutes 4 seconds, a distance of 39.39 feet to the Tree Point of Beginning; Excepting therefrom the certain property conveyed to Pima County, Arizona, a body Politic, in Docket 8900 at pages 902, 910, 918 and 934. 10 98 Original Exhibit "C" Proposed drainage areas co be covered Immm PROPOSED TWO CELL 42" STORM SRP DRAIN SYSTEM I~a~Al~ I~EV'ELO~'r'IENT I~EvE LOI'Wi"IENT DEVELOF~IENT 101~98 505