HomeMy WebLinkAboutResolution 2010-019 barnett channel excavation development agreementMARANA RESOLUTION N0.2010-19
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE A BARNETT CHANNEL EXCAVATION DEVELOPMENT AGREEMENT WITH
REYHER PARTNERSHIP AND MARANA 348 LIMITED PARTNERSHIP
WHEREAS the Town is in the process of developing a regional public drainage facility
in the vicinity of Barnett Road, commonly referred to as the "Barnett Channel"; and
WHEREAS the Barnett Channel has now been partially excavated between Sandario
Road and Sanders Road as a source of fill dirt for the Town's Camino de Mariana roadway
project, but additional excavation is required for the Barnett Channel; and
WHEREAS REYHER PARTNERSHIP and MARANA 348 LIMITED PARTNERSHIP own certain
undeveloped land in Marana's Town Center north and northwest of the Marana Municipal
Complex; and
WHEREAS REYHER PARTNERSHIP and MARANA 348 LnvIITED PARTNERSHIP have
requested to excavate portions of the Barnett Channel at no cost to the Town in exchange for the
right to place and use the excavated Barnett Channel dirt on their undeveloped Marana Town
Center land; and
WHEREAS the proposed Barnett Channel Excavation Development Agreement
accommodates the request of REYHER PARTNERSHIP and MARANA 348 LIMITED PARTNERSHIP
using language consistent with a corresponding provision in the Marana Health Center
Development Agreement approved by the Council on June 17, 2008 by allowing excavation of
dirt from-the Barnett Channel on a first come first served basis in a manner consistent with the
Barnett Channel design plans and with demonstration to the Town Engineer's satisfaction that the
resulting pit will drain within 36 hours; and
WHEREAS the Town Council finds that the Barnett Channel Excavation Development
Agreement provides sufficient consideration to the Town for the value of the Barnett Channel
dirt based on (1) the value of the Barnett Channel excavation, (2) the improved drainage
characteristics of the Town Center resulting from the placement of the dirt, and (3) the economic
development benefits of having the Town Center lands filled in preparation for development; and
WHEREAS the Mayor and Council find the terms and conditions of the Barnett Channel
Excavation Development Agreement are in the best interest of the Town.
Marana Resolution No. 2010-19 - 1 - {00019468.DOC /}
NOW; THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, AS FOLLOWS:
SECTION 1. The "Reyher Partnership and Marana 348 Limited Partnership Barnett
Channel Excavation Development Agreement" attached to and incorporated by this reference in
this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized and directed
to execute it for and on behalf of the Town of Marana.
SECTION 2. The various Town officers and employees are authorized and directed to
perform all acts necessary or desirable to give effect to this resolution.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th day of February, 2010.
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Mayor Ed~Honea
ATTEST:
APPROV D AS TO FORM:
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Marana Resolution No. 2010-19 - 2 - {00019468.DOC /}
'~ F. ANN RODRIGUEZ, RECORDER
RECORDED BY: LLW
DEPUTY RECORDER
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SMARA
TOWN OF MARANA
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ATTN: TOWN CLERK `9RIZ0~¢'
11555 W CIVIC CENTER DR
MARANA AZ 85653
DOCKET:
PAGE:
NO. OF PAGES
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AMOUNT PAID
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03/04/2010
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REYHER PARTNERSHIP AND MARANA 348 LIMITED PARTNERSHIP
BARNETT CHANNEL EXCAVATION DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS AGREEMENT (this "Agreement") is made and entered into by and between the TowN of
MARANA, an Arizona municipal corporation (the "Town"), REYHER PARTNERSHIP, an Arizona
general partnership ("Reyher") and MARANA 348 LIMITED PARTNERSHIP, an Arizona limited
partnership ("Marana 348"). Reyher and Marana 348 are referred to collectively as the "Owner."
The Town, Reyher and Marana 348 are sometimes collectively referred to as the "Parties."
RECITALS
A. The Parties entered into a "Public Facility Acquisition Agreement" dated May 24, 1999
(the "1999 Agreement"), which was amended and superseded by a "Real Estate Exchange and
Development Agreement" recorded October 10, 2003 at Docket 12154, Page 2148, Pima
County Recorder's office (the "Exchange Agreement"), which in turn was amended by an
"Amendment to Real Estate Exchange and Development Agreement" recorded July 14, 2006 at
Docket 12846, Page 4712, Pima County Recorder's office (the "Exchange Agreement
Amendment").
B. Among other things, the 1999 Agreement, the Exchange Agreement, and the Exchange
Agreement Amendment provided terms and conditions for the development of Marana's Town
Center, including (i) the transfer and sale of land from the Owner to the Town for the
construction of a new Town Hall and Civic Center Site (the "Marana Municipal Complex"),
(ii) the development of the Owner's lands addressed by the agreements, and (iii) the dedication
and construction of various public infrastructure necessary to serve the Marana Municipal
Complex and the Town Center.
C. Development within the Town Center has included construction of the Marana
Municipal Complex and a Northwest Fire District fire station, and preliminary site work for the
construction of the Marana Health Center (which is addressed by a separate "Marana Health
Center Development Agreement" recorded on July 2, 2008 at Docket 13340, Page 20, Pima
County Recorder's office, referred to in this Agreement as the "MHC Agreement").
D. The Owner still owns the lands referred to in this Agreement as the "Owner's
Remaining Lands" and particularly described in the Exchange Agreement as Block 2, Block 3,
and Block 4, and those portions of Block 1 and Block 5 that are not included in either the MHC
Agreement or in the right-of--way of Bill Gaudette Road (addressed in the Exchange Agreement
Amendment).
{OOOI9440.DOC/}
TOWN OF MARANA /REYHER PARTNERSHIP & MARANA 348LIMITED PARTNERSHIP
BARNETT CHANNEL EXCAVATION DEVELOPMENT AGREEMENT
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2/8/2010 4:37 PM
EXHIBIT A TO MARANA RESOLUTION NO.2010-19
E. The development of the Town Center, including the Owner's Remaining Lands, will
benefit from the Town's proposed development of a regional public drainage facility in the
vicinity of Barnett Road, commonly referred to as the "Barnett Channel."
F. The Owner is willing, at no cost to the Town, to excavate portions of the Barnett
Channel in a manner consistent with the current plans and specifications for the Barnett
Channel in exchange for the placement and use of the. excavated Barnett Channel dirt on the
Owner's Remaining Lands.
G. The Town finds and concludes that the value of the Barnett Channel excavation to be
accomplished by Owner, the improved drainage characteristics of the Town Center resulting
from the placement of the dirt as fill on the Owner's Remaining Lands, and the economic
development benefits of having the Owner's Remaining Lands filled in preparation for
development are sufficient consideration for the value of the dirt to be excavated.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Barnett Channel Dirt. The Owner may at its own cost and using its own contractor
excavate dirt from the Barnett Channel for use on the Owner's Remaining Lands in connection
with their ultimate development, provided that the excavation is consistent with the ultimate
design of the Barnett Channel and has not previously been excavated. The Owner shall
demonstrate to the satisfaction of the Town Engineer that the resulting pit will drain within 36
hours.
2. No Modification of Prior Agreements. This Agreement is intended to supplement but not
to amend or supersede the Exchange Agreement or the Exchange Agreement Amendment.
3. Development agreement. To the extent this Agreement governs the uses and development
of property, it shall be considered a development agreement executed under the authority of
A.R.S. § 9-500.05.
4. Notices. All notices, requests and other communications under this Agreement shall be
given in writing and either (i) personally served on the party to whom it is given, or (ii) mailed by
registered or certified mail, postage prepaid, return receipt requested, or (iii) sent by private
overnight courier such as Federal Express or Airborne, or (iv) transmitted by facsimile (provided
that a confirming copy of the facsimile transmission is mailed on the date of such transmission),
addressed as follows:
If to the Town:
TOWN MANAGER, TOWN OF MARANA
11555 W. Civic Center Drive
Marana, Arizona 85653
(520) 382-1900
Fax (520) 382-4059
{00019440.DOC/} 2/8/2010 4:37 PM
TOWN OFMARANA /REYHER PARTNERSHIP & MARANA 348LIMITED PARTNERSHIP
BARNETT CHANNEL EXCAVATION DEVELOPMENT AGREEMENT
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l
If to the Owner:
EXHIBIT A TO MARANA RESOLUTION N0.2010-19
GREG WEXLER
7995 North Business Park Drive
Tucson, AZ 85743
(520) 744-8500
Fax (520) 744-0749
With a copy to:
BARRY A. EBERT
'7 8R o Fast M c c ~ a;., 1~~fve, Si-[. 3
Scottsdale, Arizona 8x25$ $ sz~o
(480)998-7232
Fax (480) 998-3996
All notices shall be deemed given when delivered or transmitted by facsimile or, if mailed as
provided above, on the second day after the day of mailing, and if sent by overnight courier, on
the next day after the date of deposit with the courier. Any party may change its address for the
receipt of notices at any time by giving written notice thereof to the other parties in accordance
with the terms of this section. The inability to deliver notice because of a changed address of
which no notice was given, or rejection or other refusal to accept any notice, shall be deemed to
be the effective receipt of the notice as of the date of such inability to deliver or rejection or
refusal to accept.
5. Miscellaneous.
(A) This Agreement may not be modified except in a writing signed by the Parties.
(B) Time is of the essence of this Agreement.
(C) This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Arizona, and any lawsuit to enforce any provision of this Agreement or to
obtain any remedy with respect to this Agreement shall be brought in the Pima County
Superior Court, and for this purpose the Parties expressly and irrevocably consent to the
jurisdiction of the Pima County Superior Court.
(D) If either of the Parties fails to perform any of its obligations under this Agreement
or if a dispute arises concerning the meaning or interpretation of any provision of this
Agreement, the defaulting party or the party not prevailing in the dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party in enforcing or
establishing its rights under this Agreement, including, without limitation, court costs and
reasonable attorneys' fees.
(E) The captions and section numbers appearing in this Agreement are inserted only
as a matter of convenience, and do not define, limit, construe or describe the scope or
intent of such sections or articles of this Agreement.
(00019440.DOC/} 2/8/2010 437 PM
TOWN OF MARANA /REYHER PARTNERSHIP & MARANA 348LIMITED PARTNERSHIP
BARNETT CHANNEL EXCAVATION DEVELOPMENT AGREEMENT
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EXHIBIT A TO MARANA RESOLUTION NO. 2010-19
(F) This Agreement may be executed in multiple counterparts, each of which shall,
for all purposes, be deemed an original and all of which, taken together, shall constitute
one and the same agreement.
(G) This Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors in interest and assigns; provided, however, that no assignment
of this Agreement shall in any way relieve the assignor of its obligations under this
Agreement.
(H) This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of
contracts in certain instances involving conflicts of interest.
(I) Exhibits referred to in this Agreement are attached to and incorporated by
reference as if set forth in full in this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the last date set
forth below their respective signatures.
TOWN: OWNER:
THE TOWN OF MARANA, an Arizona REYHER PARTNERSHIP, an Arizona general
municipal corporation partnership ("Reyher")
By: Trident Marana Properties, Inc.
Managing Partner
By: ~~
Ed nea, Mayor
Date: ~ -~~ ~~
Barry A. Ebert, Vice President
Date: 3 •! • ! o
ATTEST:
Jocelyn ~/$ronson, Clerk
APPROVED AS TO FORM:
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(` ank C, ` sidy, Town A ey
MARANA 348 LIMITED PARTNERSHIP, an
Arizona limited partnership ("Marana 348")
By:
Robert arver, en(er~al Partner
Date: ~ ~ ~ "
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(00019440.DOC/} 2/8/2010 4:37 PM
TOWN OF MARANA /REYHER PARTNERSHIP & MARANA 348LIMITED PARTNERSHIP
BARNETT CHANNEL EXCAVATION DEVELOPMENT AGREEMENT
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EXHIBIT A TO MARANA RESOLUTION N0.2010-19
STATE OF ARIZONA
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The foregoing instrument was acknowledged before me on ~~rc~ -~ ~ ~° ~ J by Barry A.
Ebert, Vice President of TRIDENT MARANA PROPERTIES, INC., Managing Partner of REYHER
PARTNERSHIP, an Arizona general partnership, on behalf of the partnership.
.~- ~~~~~'=~r_ry Pufalla State pf Arizona
aricopa County
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Notary ublic
STATE OF ARIZONA
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County of Pima )
The foregoing instrument was acknowledged before me on 1G ~j ,~.~~ a.0 I o by Robert
Sarver, General Partner, on behalf of MARANA 348 LIMITED PARTNERSHIP, an Arizona limited
partnership.
My commission expires: ~
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8andn L, P~nnlnpton
NpTARY t~UBLlfti ~-ARIZd~NA
MARICOPA COUNTY
My Commission Ercpi-es
July 23, 2011
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{00019440.DOC/} 2/8/2010 4:37 PM
TOWN OF MARANA /REYHER PARTNERSHIP & MARANA 348LIMITED PARTNERSHIP
BARNETT CHANNEL EXCAVATION DEVELOPMENT AGREEMENT
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