Loading...
HomeMy WebLinkAboutResolution 2010-066 willow ridge reconcilliation agreementMARANA RESOLUTION N0.2010-66 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE WILLOW RIDGE RECONCILIATION AGREEMENT WHEREAS CPE Development Company, the Town of Marana, and other parties entered into the WILLOW RIDGE DEVELOPMENT AGREEMENT recorded in the Pima County Recorder's office on Apri130, 2004 at Docket 12292, Page 6664 (the "Willow Ridge DA"); and WHEREAS CPE Development Company was the "Developer" under the Willow Ridge DA; and WHEREAS paragraph 2.3 of the Willow Ridge DA provides for the Town of Marana to reimburse the Developer out of construction sales (transaction privilege) tax generated from construction activity occurring on the Willow Ridge project for certain Cortaro Road design and construction costs; and WHEREAS construction of the Cortaro Road improvements contemplated by the Willow Ridge DA has been completed and the Town has begun to receive construction sales (transaction privilege) tax generated from construction activity occurring on the Willow Ridge project; and WHEREAS the Mayor and Council find that the best interests of the Town of Marana are served by the approval and execution of the Willow Ridge Reconciliation Agreement, memorializing negotiations affecting the reimbursement under paragraph 2.3 of the Willow Ridge DA and clarifying the parties' obligations based on events that have occurred since the effective date of the Willow Ridge DA. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the "Willow Ridge Reconciliation Agreement" between the Town of Marana and CPE Development Company, 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. .e.~ BE IT FURTHER RESOLVED that the Town's Manager and staff are hereby directed and ~~ authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the agreement. Marana Resolution 2010-66 {000219] 1.DOC /} PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 20th day of July, 2010. ATTEST: J elyn C onson, Town Clerk Mayor Ed onea Marana Resolution 2010-66 {0002191 I.DOC /} APPROVED AS TO FORM: F. ANN RODRIGUEZ, RECORDER RECORDED BY: LLW °~ ~I~ DEPUTY RECORDER 1956 PE-2 q Qv ~~~~ ~ ' ~ y ~ sMARA ~ ~»z W~' ~ ~ ~ ~ TOWN OF MARANA `1~ ~' , . ATTN: TOWN CLERK `4RIZO~Q' 11555 W CIVIC CENTER DR MARANA AZ 85653 DOCKET PAGE NO. OF PAGES SEQUENCE: AG 13857 1319 6 20101410372 07/23/2010 15:59 MAIL AMOUNT PAID $ 8.50 WILLOW RIDGE RECONCILIATION AGREEMENT TOWN OF MARANA~ ARIZONA THIS WILLOW RIDGE RECONCILIATION AGREEMENT (this "Agreement") is made by and between the TowN of MARANA, an Arizona municipal corporation (the "Town"), and CPE DEVELOPMENT COMPANY, INC., an Arizona corporation (the "Developer"). The Town and the Developer are collectively referred to in this Agreement as the "Parties," either of which is sometimes individually referred to as a "Party." RECITALS A. The Town and the Developer were parties, with others, to the WILLOW RIDGE DEVELOPMENT AGREEMENT recorded in the Pima County Recorder's office on April 30, 2004 at Docket 12292, Page 6664 (the "Willow Ridge DA"). The "Developer" under the Willow Ridge DA and the Developer under this Agreement are one and the same entity. B. Paragraph 2.3 of the Willow Ridge DA provides as follows: 2.3. Cortaro Road Design and Construction Costs. The Developer shall contribute at least $700,000 toward the design and construction of Cortaro Road, as follows: 2.3..1. The Developer shall hire and pay all fees and costs for a qualified civil engineer to design the improvement of Cortaro Road to a four lane divided cross-section from the Union Pacific Railroad Crossing to Camino de Oeste, with a transition to the existing two-lane cross-section at Star Grass Drive. 2.3.2. The Developer shall pay the Town $50,000 upon the issuance of a building permit for a commercial use at the southwest corner of Cortaro Road and Camino de Oeste to be used for regional drainage solutions that benefit the Property. 2.3.3. Upon award of the contract for construction of Cortaro Road from the Union Pacific Railroad Crossing to Star Grass Drive, the Developer shall pay the Town the difference between $700,000 and the sum of the Cortaro Road design costs incurred pursuant to paragraph 2.3.1 above and the payment (if any) to the Town pursuant to paragraph 2.3.2 above; provided, however, that if the sum of the amounts incurred and paid by the Developer pursuant to paragraphs 2.3.1 and 2.3.2 above exceed $700,000, no additional payment to the Town shall be required under this subparagraph. 2.3.4. The Developer shall be reimbursed for any amounts paid by the Developer under this paragraph 2.3 out of the Town construction sales (transaction privilege) tax devoted to transportation generated from and paid to the Town as a result of construction activity occurring on the Property. {00021776.DOC / 2} -1- 6/29/2010 10:46 AM WILLOW RIDGE RECONCILIATION AGREEMENT N ~. C. Construction of Cortaro Road improvements contemplated by the Willow Ridge DA (the "Cortaro Road Improvements," described in more detail in paragraph 1 below) has been completed and the Town has begun to receive construction sales (transaction privilege) tax generated from construction activity occurring on the Willow Ridge project-the "Property" under the Willow Ridge DA. D. The Parties desire to memorialize previous negotiations affecting the Parties' obligations under paragraph 2.3 of the Willow Ridge DA, and to clarify certain obligations based on events that have occurred since the effective date of the Willow Ridge DA. AGREEMENT Now, TxExEFOt~, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Agreement, the Parties hereby agree as follows: 1. Acknowledgment of Developer's $700,000 contribution. The Parties acknowledge that the Developer contributed at least $700,000 toward the design and construction of the Cortaro Road Improvements by hiring and paying all fees and costs for a qualified civil engineer to design the improvement of Cortaro Road to a four lane divided cross-section from the Union Pacific Railroad Crossing to Camino de Oeste, with a transition to the pre-existing two-lane cross- section at Star Grass Drive. Consequently, the provisions of paragraph 2.3.3 of the Willow Ridge DA were not applicable. 2. Status of $50,000 Payment Obligation under Paragraph 2.3.2. To date, no building permit has been issued for a commercial use at the southwest corner of Cortaro Road and Camino de Oeste, and:, as a condition of its purchase of the said southwest corner, the buyer accepted the obligation under paragraph 2.3.2 of the Willow Ridge DA to pay $50,000 toward regional drainage solutions that benefit the Property. Consequently, the Town will look to the buyer for payment of the $50,000, and neither the Developer nor anyone else will be entitled to reimbursement of the future $50,000 under paragraph 2.3.4 of the Willow Ridge DA. 3. Settlement of Claims. The Parties hereby memorialize a negotiated settlement of claims relating to the design and construction of the Cortaro Road Improvements. The settlement requires the Developer to pay $96,750 toward the cost to design and construct the Cortaro Road Improvements. 4. Setoff against Reimbursement. The Parties agree that the $96,750 settlement described in paragraph 3 above shall be setoff against the amounts owed by the Town under paragraph 2.3.4 of the Willow Ridge DA. 5. Total Amount Eligible for Reimbursement under Paragraph 2.3.4. Because the Developer paid at least $700,000 for engineering under paragraph 2.3.1 of the Willow Ridge DA and did not make the $50,000 payment addressed by paragraph 2.3.2 of the Willow Ridge DA, the total amount reimbursable from the Town to the Developer under paragraph 2..3.4 of the Willow Ridge DA would be $700,000. Applying the $96,750 setoff (paragraph 4 above), the Parties acknowledge that the total amount of available Developer reimbursement under paragraph 2.3.4 of the Willow Ridge DA is $603,250. 6. Clarification of Reimbursement Source. The Town currently assesses, and since construction activities began occurring on the Property has assessed, a 4% construction sales (transaction privilege) tax. On the effective date of the Willow Ridge DA, 75% of the Town's construction sales (transaction privilege) tax was "devoted to transportation." Effective July 1, 2009, the Town reallocated the tax devoted to transportation to 50%. Nevertheless, the {00021776.DOC / 2} -2- 6/29/2010 10:46 AM WILLOW RIDGE RECONCILIATION AGREEMENT '~ reimbursement to the Developer under paragraph 2.3.4 of the Willow Ridge DA shall be not less than 75% of the Town construction sales (transaction privilege) tax devoted to transportation generated from and paid to the Town as a result of construction activity occurring on the Property. 7. Sales Tax Accounting. The Town receives monthly reports from the Arizona Department of Revenue listing taxpayers and total Town tax amounts paid during the month. The reports do not separately track a taxpayer's payments to the Town as a result of construction activity occurring on the Property. Confidentiality of taxpayer information is addressed by Title 42, Chapter 2, Article 1 of the Arizona Revised Statutes (A.R.S. § 42-2001 et seq.), and requires a taxpayer confidentiality waiver to reveal tax information for most purposes. The Parties will cooperate, within the limits of the law, to obtain any taxpayer information necessary to determine the amount of Town construction sales (transaction privilege) tax devoted to transportation generated from and paid to the Town as a result of construction activity occurring on the Property. 8. Notice. All notices, filings, consents, approvals and other communications provided for in or given in connection with this Agreement shall be validly given, filed, made, transmitted or served if in writing and delivered personally or sent by registered or certified United States mail, postage prepaid, if to (or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner): To the Town: Town of Marana Town Manager 13251 N. Lan Adams Road Marana, Arizona 85653 To the Developer: CPE DEVELOPMENT COMPANY, INC. Raul F. Ping 378 N. Main Avenue Tucson, Arizona 85701 9. Term. This Agreement shall become effective upon its execution by all Parties and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the termination date of the Willow Ridge DA. 10. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of the terms, covenants or conditions of this Agreement, or by reason of any breach or default of this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys' fees by the other Party, in an amount determined by the court and not by the jury. 11. 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 ,w instrument. The signature pages from one or more counterparts may be removed from the counterparts and attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 12. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements, {00021776.DOC / 2} -3- 6/29/2010 10:46 AM WILLOW RIDCE RECONCILIATION AGREEMENT representation and understanding of the Parties, oral or written, are hereby superseded and merged in this Agreement. 13. Inter retation. This Agreement has been negotiated by the Town and the 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. 14. Recordation. The Town shall record this Agreement in the office of the Pima County Recorder after it has been executed by the Parties. 15. Conflict of Interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 16. Effect on Willow Ridge DA. Except to the extent paragraph 2.3 of the Willow Ridge DA is clarified and reconciled by this Agreement, the Willow Ridge DA is unaffected by this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. THE TOWN: THE TOWN OF MARANA, an Arizona municipal corporation By: Ed Honea, ayor Date: ~~°~© -~~ THE DEVELOPER: CPE DEVELOPMENT COMPANY, Arizona coraoratin~---~ Y~ Raul F. Pina, Author` Date: ~ ~ ~' ATTEST: J~ elyn C. son, Clerk PPROVE TO FORM: f ra Cassi ,Town Attorne TATE OF RIZONA sS County of Pima ) The foregoing instrument was acknowledged before me on ~~ ~ (D' ~ © by. Raul F. Pina, an authorized officer of CPE DEVELOPMENT COMPANY, INC., an Arizona corporation, on behalf of the corporation. My commission expires; Notary Publi 1~taq~lPubliC - Ariwna _4- 6/29/2010 10:46 AM P~n1 COYi'~y WILLOW R[DGE RECONCILIATION AGREEMENT My COnIOn ElI{Ilfiaa ,lanwry 2!, 2013