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Home My WebLink About08/03/2010 AMENDED Regular Council Agenda Packet~1~ Yf~'+~ann w.m~a.~k *Amended on 7/29%2010 at 3:14 P.M. -REGULAR COUNCIL MEETING NOTICE AND AGENDA 11555 W. Civic Center Drive, Marana, Arizona 85653 Council Chambers, August 3, 2010, at or after 7:00 PM Ed Honea, Mayor Herb Kai, Vice Mayor Russell Clanagan, Council Member Patti Comerford, Council Member Carol McGorray, Council Member Jon Post, Council Member Roxanne Ziegler, Council Member ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA. Revisions to the agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in italics. As a courtesy to others, please turn off or put in silent mode all pagers and cell_phones. Meetin Tg imes Welcome to this Marana Council meeting. Regular Council meetings are usually held the first and third Tuesday of each month at 7:00 p.m. at the Marana Town Hall, although the date or time may change, or Special Meetings may be called at other times and/or places. Contact Town Hall or watch for posted agendas for other meetings. This agenda may be revised up to 24 hours prior to the meeting. In such a case a new agenda will be posted in place of this agenda. _S~eaking at Meetings If you are interested in speaking to the Council during Call to the Public, Public Hearings, or other agenda items, you must fill out a speaker card (located in the lobby outside the Council Chambers) and deliver it to the Town Clerk prior to the convening of the meeting. All persons attending the Council meeting, .whether speaking to the Council or not, are expected to observe the Council Rules, as well as the rules of politeness, propriety, decorum and good conduct. Any person interfering with the meeting in any way, or acting rudely or loudly will be removed from the meeting and will not be allowed to return. Accessibility To better serve the citizens of Marana and others attending our meetings, the Council Chambers are wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of special services as a result of their disability, such as assistive listening devices, agenda materials printed in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such Regular Council Meeting -August 3, 2010 -Page 1 of 97 special services are available upon prior request to the Town Clerk at least 10 working days prior to the Council meeting. Agendas Copies of the agenda are available the day of the meeting in the lobby outside the Council Chambers or online at www,marana.com, by linking to the Town Clerk page under Agendas, Minutes and Ordinances. For questions about the Council meetings, special services or procedures, please contact the Town Clerk, at 382-1999, Monday through Friday from 8:00 a.m. to 5:00 p.m. Posted no later than Monday, August 02, 2010, 7:00 PM, at the Marana Municipal Complex, the Marana Operations Center and at www.marana.com under Town Clerk, Agendas, Minutes and Ordinances. REGULAR COUNCIL MEETING CALL TO ORDER AND ROLL CALL PLEDGE OF ALLEGIANCE/INVOCATION/MOMENT OF SILENCE APPROVAL OF AGENDA CALL TO THE PUBLIC At this time any member of the public is allowed to address the Town Council on any issue not already on tonight's agenda. The speaker may have up to three minutes to speak. Any persons wishing to address the Council must complete a speaker card located outside the Council Chambers and deliver it to the Town Clerk prior to the commencement of the meeting. No electronic capability will be provided by the town beyond existing voice amplication and recording (for DVD, CD Rom, USB drives, etc.) Pursuant to the Arizona Open Meeting Law, at the conclusion of Call to the Public, individual members of the council may respond to criticism made by those who have addressed the Council, may ask staff to review the matter, or may ask that the matter be placed on a future agenda. PROCLAMATIONS Drowning Impact Awareness Month Honoring Ora Mae Harn Added Late MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS PRESENTATIONS CONSENT AGENDA The Consent Agenda contains items requiring action by the Council which are generally routine items not requiring Council discussion. A single motion will approve all items on the Consent Regular Council Meeting -August 3, 2010 -Page 2 of 97 agenda, including any resolutions or ordinances. A Council Member may remove any issue from the Consent agenda, and that issue will be discussed and voted upon separately, immediately following the Consent agenda. C L• Resolution No._2010-71: Relating to Development; approving the release of the Private Improvement Agreement for New Life Baptist Fellowship, 4857 W. Cortaro Farms Road and acceptance of public improvements for maintenance (Keith Brann) C 2: .,Resolution No. 2010-72;Relating to Development; approving a release of assurances for Gladden Farms Block 17 and acceptance of public improvements for maintenance (Keith Brann) C 3: Resolution No. 2010-73: Relating to Parks and Recreation; authorizing Town of Marana staff to share resources and to work in partnership with the Town of Oro Valley to plan community events, including Marana's 2011 Founders' Day event, for the State of Arizona's centennial celebration (Tom Ellis) C 4: Ordinance No. 2010.12: Relating to Finance; amending the Town of Marana comprehensive fee schedule; and designating an effective date (Erik Montague) C 5: Ordinance No. 2010.1.3;__Relating to Business Regulations; amending spirituous liquor license fees addressed by Town Code section 9-1-3(B) to correspond with changes made to the comprehensive fee schedule adopted by Marana Ordinance No. 2010.12; and establishing an effective date (Cedric Hay) C 6: _Resolution No. 2010-74 _Relating to Building Codes; approving and authorizing the Mayor to execute the extension of an intergovernmental agreement- with Pima County for the regulation of public property regarding Code compliance for public buildings (Cedric Hay) C 7: Resolution No. 2010-75: Relating to Community Development; authorizing the Town to support Up with People performances and community service in the Town of Marana (Rodney Campbell) C 8: Minutes of the July 20, 2010 regular council meeting C 9: Resolution No. 2010-76: Relating to Development; adopting a notice of intent Added Late to enter into an amendment to the retail development tax incentive agreement for the Marana Spectrum project proposed to be located at the southeast quadrant of Interstate 10 and the future Twin Peaks Interchange (Frank Cassidy) LIQUOR LICENSES L 1: Relating to Liquor Licenses; recommendation to the state liquor board regarding a New Series #12 (Restuarant) liquor license application submitted by Fei Cheng on behalf of Sushi Cortaro, located at 8225 N. Courtney Page Way, #141 BOARDS, COMMISSIONS AND COMMITTEES COUNCIL ACTION ITEMS FOR DISCUSSIONlPOSSIBLE ACTION Regular Council Meeting -August 3, 2010 -Page 3 of 97 D 1: Le ig slativ_e/Inte~oyernmental_Report; Discussion/Direction/Action regarding all pending state and federal legislation and report on recent meetings of other legislative bodies (Steve Huffman) EXECUTIVE SESSIONS E 1: Executive Session pursuant to A.R.S. §38-431.03 (A)(3), Council may ask for discussion or consultation for legal advice with the Town Attorney concerning any matter listed on this agenda. E 2: Executive Session pursuant to A.R.S. § 38-431.03(A)(3),(4) and (7), discussion or consultation for legal advice with the Town's attorneys and discussion and to consider its position and instruct the Town Manager and staff concerning (1) the lawsuit entitled Town of Marana v. Pima County/Pima County v. Marana (consolidated), Maricopa County Superior Court No. CV2008-001131, (2) pending legal issues, settlement discussions and contract negotiations relating to the transition of Marana wastewater collection and treatment to the Town of Marana E 3: Executive session pursuant to A.R.S. § 38-431.03(A)(2) and (4) to consider the Added Late Town's position and instruct its attorneys regarding the pending litigation entitled Blomquist v. Town of Marana, United States District Court, District of Arizona, Case No. 4:09-CV-671 TUC DCB, and for discussion or consideration of confidential records relating to the case FUTURE AGENDA ITEMS Notwithstanding the mayor's discretion of what items to place on the agenda, if three or more council members request an item to be placed on the agenda, it must be placed upon the agenda for the second regular town council meeting after the date of the request (Marana Town Code, Title 2, Chapter 2-4, Section 2-4-2 B) ADJOURNMENT Regular Council Meeting -August 3, 2010 -Page 4 of 97 PRC~~~.~~~4~,~'Ea~l _ ,_ ~' . .a WHEREAS ` ~;i<<_ ~,;r ~ r ~.. _ . , ., ....- _ - ~ .. :,~ ._ !i~ '~ I ., C1, fig:' I. ';f ';) ~I~ WHEhEAS ' ._. ._ .. ,. ~~ ~>;r ~_ir_.,~ ~7~ WHEREAS ~~~~r _, ..~ ! ~ =. ~ =~:_all ~:_r~ ~_, i ~ ~-~ ~~'~~;~ .,, C • -. ~ ,.~, ~.- - - ,, WNEfTEAS r _ _r ~ a . _. ~ i._. t r~~ ~ I -~~~_~..;~ ~ .. =''- - - ~, ;', .. ~~. .f rho-, ~Cs~ti, Th1=RiTFORE r _. ._,_._, ~ "' - ~,r' l'T ~. a. ,f ~'fi' '~:_ 'T' August 1 through August 31, 210 L7ROWNING IA~lPACT A~'~ARENESS F.jtC>NTH !I~ Tt-I~ TOWN OF R1~`?~~F~A HONORIiV~ C}t~A 1'ttiAE HAfi~= PRQCLAMATICI~ !r IS ~^.II~I G_CI? ~ ~-, e. 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(i~> .'(r .'F?dYr ~ i11 ~ f11.1171;7f -~ .~~Inll 'i~~S~iQi"' ~C~ '~ , ~."~ I`1 ~Olli) .' "t~ ;. .'C~3(1?+~ :~lr_' '~I~-_`~t ~i.'~1 ~~:.: Ir1tC) V~cil tll~'~ `i,lE~ Or ~ - -_ :'11 ~ c'_., { ,'{ _~-:.;°~`• C~,..~ ^~.~ 3_+`_> k1r '+ ihf. f'; ._ ;_t 1is~:' it _.~ ~,f~•?., IT t~l ~!,_ .i. -ti~,a-fr (.3. ~~ t:'..-~~ ~i~tl~ ,' ~ C~1~f11i`dC"1 t ` ~!1('~.:~l~t C: ~ -~ rfl~,t ;3i~- ;`~."~ {~. ~"" t:~` tt'Llli'C .f ~:e';SE'.~i~~:ffC_ :'} i ~~e:E~~;~ itl C~~I r~;.~ 11~'f1t L'k"~F', v ._,~. -. _'~!~wll~ `3'it, r~;c~~`~t ~~i~ +~`i: l.r E t,.:',~I r,+ ~i)~~C '~"~f Ii'.-. l~if~'<~ t'~ tl, r~'.l t'4- < <.jfir ~ '1~ _:?`1? I~ Cn"'I ~:: CIi ~2f L I a tr~~l E: ~C~ ~'~U+~1' TF`EF _ ._ ~ , .f,:. 'i+ i;i~C7 -,.t ..; i CC .1I";C'-i ~ i?PI ~~~Ci ~di'T; tf ~c~ 'lt- (~~> c~ f/i c. .1~C r"._. "l ',rJl.~ ~I''Jr 1 (_!~- + if I?a ~il~ i ~{1E_ r.~ l.j`C.i_ L,:i I~.' Ill l~ [~ i I'. .j f11°_+ ~f'1 t_' "~~tJ ~,i~~ ~. ~rf~~_;r~.ed a~ its. _i, ~:s ~. ~.:?f_I~~~~I ".?c ,ft_~_ ~ a.}r. f.~~~l;~~~ ~~-~ rr= ..!, _ _ ur;t~lcr, ~.Irc'~!T~CJ±flrl,~l.'t .'t~~~Tl ~i+.=1nt1 a'-C'c~ ~1~,fluii`'~7Lft_.- ~~i~ 1+~~~i?.7~r il'_ A _ .`~C.. 1; C7 ~Oal ~Jj !G C~21Yi~ ~'al; ~ ..° ('1 ~' ~?lU r i ~ (" r'~' GfY? i t ~ _ , . ~~l 1'OL ~ i a'S'~+ _ _ ~~~ i ~_-. ~: ~, .-~`3t'rT~~:l' .1?l~,~~ ~21i~tr:tk'12~ ~i-_~_~}~"!fE i_ E~ l \~`._A.'tII('=._~.c=~~~~F~~'~~~CL( ., 'r - ~ -( :~ € ~ £~ Rec ular Council Meeting August 3. 2010 -Page 6 of 97 ' ~'- ~a4 ~ ..~. ~s 9 f-~1~~ ~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council From: Keith Brann ,Town Engineer Strategic Plan Focus Area: Not Applicable Item C 1 Subject: Resolution No. 20_10071: Relating to Development; approving the release of the Private Improvement Agreement for New Life Baptist Fellowship, 4857 W. Cortaro Farms Road and acceptance of public improvements for maintenance Discussion: Approval of this Resolution will release the Private Improvement Agreement between the Town of Marana and New Life Bible Fellowship as depicted on Exhibit A. In releasing said Assurance Agreement, the Town of Marana will accept for maintenance, approximately 791 linear feet of Cortaro Farms Road improvements, including regulatory traffic control signs, street signs, and a right turn lane constructed as part of the New Life Baptist Fellowship project. Financial Impact: This item has been budgeted in operations and maintenance. ATTACHMENTS: Name: Description: Type: ~ Resolution_New_Lfe Baptist.doc Resolution Resolution ~ Ex_A NLBC,pdf Location map Exhibit Staff Recommendation: Staff recommends Mayor and Council release the Private Improvement Agreement for New Life Baptist Fellowship and accept the public improvements for maintenance. Suggested Motion: I move to adopt Resolution No. 2010-71, approving the release of the Private Improvement Agreement for New Life Baptist Fellowship, 4857 W. Cortaro Farms Road and acceptance of public improvements for maintenance. Regular Council Meeting -August 3, 2010 -Page 7 of 97 MARANA RESOLUTION N0.2010-71 RELATING TO DEVELOPMENT; APPROVING THE RELEASE OF THE PRIVATE IMPROVEMENT AGREEMENT FOR NEW LIFE BAPTIST FELLOWSHIP, 4857 W. CORTARO FARMS ROAD AND ACCEPTANCE OF PUBLIC IMPROVEMENTS FOR MAINTENANCE WHEREAS, New Life Bible Fellowship, has completed the public improvements acceptable to Town standards in accordance with the Private Improvement Agreement for New Life Baptist Church under offsite engineering plan ENG0808-005. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA AS FOLLOWS: SECTION 1. The Town accepts for maintenance, including maintenance of regulatory traffic control and street signs, 791 linear feet of right turn lane and the appurtenances, as depicted on Exhibit A. PASSED. AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 3rd day of August, 2010. Mayor Ed Honea. ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting -August 3, 2010 -Page 8 of 97 ~' ~.~ ~ o ~~ ~~~ ~ ~ ~ :~ _ ~ ~ ~ ~. 0 rF~ _ 11 G ~~ ~ ~_ ~ ~~~ o ~~, ~ ~ ~~ `~ (~ 1 ~ I o ~ -~ i w I I~ ~ ~ ~~ w g~ ~_- ~ _ ~ ~ -j ; r U a m O`s - i~ f I I ~~ ~I ~~~ ~ ~ J i ~ '~ ' ~ 'nE I I ~ ~ a® I ~~ ~~ I ..~ I ~~ ~ ~ I I . g I '• I ggg~~ I ~ I y8 a a ~~ ~: _t ~; 8 -- _.. __. h E h~~e ,. ~ ~ ~- _- ~ K .~., tis,----.,awe--~-^,Aa.--~---w+"J~ ` ~ ~ c~ .: a ~ ~ ~ F h~€ ~ ~ ~ ~ ~€ ~ ~ ~ ~ ~ ~ ~~3~~~ ~" ~' s~ g~ ~ ~ ~ ~s ~a a ~ ~ ~ A ~~ ~~ ~~a~~ ~ ~ ~ ~ ~ ~ ~ ~~~~~~~~ ~ e~pp~ ~~ ~~ b ~ ~ ~ ~~~ h e ~ ~ ~ ~~ tlg ~ ~ ~~tr ~6~ - ~ R ~ ~ ~ h8 - Q ~ 8 z ~ u ~ `B E~ ~ $a ~ a e ~ y & ~ ~ ~~ a ~+ ~ $~ b h ~ v~ ~ $ ~ ~ ~ ~ ~ Fh ~~ ~ 2 ~ ~~ ` ~Q y $ ~ h ~ ~ Qeh ~ ~E ~ ~ ~ h ~ ~ a ~~ a ~~ ~~ ~~ ~ ~ se ~~''~ ~ ~ ~ ~R t <~`~ ~C c ] ~ ~ e 6 ~~ ~ ~~8 ~'~~ ~ ~ ~~ "°~ ~E hh ~ e~ ~~ ~~ ~~ S t ~~ ~.~ 4qg Q X W rn 0 rn m rn m a O O N M a' rn c N N c 0 l6 7 N ,~ ~~ IYt~~~ '~.,'1.r..^~, l 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council Item C 2 From: Keith Brann ,Town Engineer Strategic Plan Focus Area: Not Applicable Subject: Resolution No. 2010-72: Relating to Development; approving a release of assurances for Gladden Farms Block 17 and acceptance of public improvements for maintenance Discussion: This resolution will release the Assurance between Bell Hollow LLC and Fidelity Title Agency, under Trust No. 60,360 and the Town of Marana, regarding Gladden Farms Block 17 as depicted on Exhibit A. Gladden Farms Block 17 is comprised of lots 1 through 56 and Common Areas `A- 1' through `A-11", `B-1', `B-2' and `C-1' and is recorded at the Pima County Recorder's Office in Book 60 of Maps and Plats, Page 21. In releasing said Assurances, the Town of Marana will accept for maintenance regulatory and traffic signs and approximately 0.52 miles of the following paved streets: Drawbar Drive, Starthroat Drive, Oliveaceous Drive, Ruddy Drive, and Buffelhead Drive. The Town accepts for maintenance, a potable water system including 5,5401inear feet of potable and non-potable water line, water meters, appurtenances, valves, and fire hydrants for the above referenced project with an estimated value of $241,151. Financial Impact: This item is included in the operations and maintenance budget. ATTACHMENTS: Name: Description: Type: D Resolution - 100414 GF Blk 17.doc Resolution Resolution ~ Ex_A GF Blk 17.pdf Location Map Exhibit A .Exhibit Staff Recommendation: Staff recommends Mayor and Council release the assurances for Gladden Farms Block 17 and accept the public improvements for maintenance. Regular Council Meeting -August 3, 2010 -Page 10 of 97 Suggested Motion: I move to adopt Resolution No. 2010-72, approving a release of assurances for Gladden Farms Block 17 and acceptance of public improvements for maintenance. Regular Council Meeting -August 3, 2010 -Page 11 of 97 MARANA RESOLUTION NO. 2010-72 RELATING TO DEVELOPMENT; APPROVING A RELEASE OF ASSURANCES FOR GLADDEN FARMS BLOCK 17 AND ACCEPTANCE OF PUBLIC IMPROVEMENTS FOR MAINTENANCE WHEREAS, Gladden Farms Block 17 is a 15.81 acre subdivision located west of Lon Adams Road and north of Tangerine Farms Road ,containing lots 1-56, and common areas `A-1' through `A-11', `B-1', `B-2, and `C-1' and is recorded at the Pima County Recorder's Office in Book 60 of Maps and Plats, Page 21; and WHEREAS, the Town has an Assurance Agreement assuring the completion of public improvements; and WHEREAS, Bell Hollow L.L.C., and has completed the public improvements acceptable to Town standards in accordance with the Assurance Agreement for Gladden Farms Block 17; and NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF TOWN OF MARANA as follows: SECTION 1. Gladden Farms Block 17 is hereby released from the Assurance Agreements with Fidelity National Title Agency Inc. under Trust 60,360. SECTION 2. The Town accepts for maintenance, including maintenance of regulatory traffic control and street signs, for maintenance, approximately 0.52 miles of the following paved streets as shown on Exhibit A: Drawbar Drive, Starthroat Drive, Oliveaceous Drive, Ruddy Drive, Buffelhead Drive SECTION 3. The Town accepts for maintenance, a potable water system including 5540 if of potable and non-potable water line, water meters, appurtenances, valves, and fire hydrants for the above referenced project with an estimated value of $241,151. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 3rd day of August, 2010. ATTEST: Mayor Ed Honea APPROVED AS TO FORM: Jocelyn C. 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'~^~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council Item C 3 From: Tom Ellis ,Parks and Recreation Director Strategic Plan Focus Area: Community Building, Heritage, Recreation Subject: Resolution No. 2010-73: Relating to Parks and Recreation; authorizing Town of Marana staff to share resources and to work in partnership with the Town of Oro Valley to plan community events, including Marana's 2011 Founders' Day event, for the State of Arizona's centennial celebration. Discussion: The towns of Marana and Oro Valley have proposed to work cooperatively on two community- wide events that would celebrate the state's centennial, which occurs in February 2012. Marana would use Founders' Day 2011 as the kickoff with Oro Valley's event taking place the following February. Founders' Day could carry a state centennial theme to raise awareness of this important event in Arizona history. Parade participants would be encouraged to incorporate the state centennial and Marana's role in Arizona history in their entries. In the four months between the events, the towns (with support from the private sector) would host a scavenger hunt involving historic places in and around the two communities. Each town would work with its heritage groups to identify historic places of significance. Participants would visit as many of the sites as possible, learn the significance of each locale and be entered in a drawing for prizes that would be given at Oro Valley's event. Staff from the two towns and members of the Marana Heritage Conservancy also would visit elementary school classes in the two communities in the 2010-11 school year to teach children about the rich history the towns share and the region's important place in local and state history. The two town councils and staff have always worked well together. These events would also bring together residents and business owners from the two communities to celebrate our shared heritage in the northwest region of Pima County. Financial Impact: The minimal costs would be included in the 2011 Founders' Day budget. Staffs goal, consistent with our current business model, is to see private sector sponsorship of most, if not all activities. Regular Council Meeting -August 3, 2010 -Page 14 of 97 ATTACHMENTS: Name: Description: Type: O Reso re. partnership w- O.V. for Arizona centennial Resolution Resolution (00022180). DOC. Staff Recommendation: Council's pleasure. Suggested Motion: I move to adopt Resolution No. 2010-73, authorizing Town of Marana staff to share resources with and to work in partnership with the Town of Oro Valley to plan community events, including Marana's 2011 Founders' Day event, for the State of Arizona's centennial celebration. Regular Council Meeting -August 3, 2010 -Page 15 of 97 MARANA RESOLUTION NO. 2010-73 RELATING TO PARKS AND RECREATION; AUTHORIZING TOWN OF MARANA STAFF TO SHARE RESOURCES AND TO WORK IN PARTNERSHIP WITH THE TOWN OF ORO VALLEY TO PLAN COMMUNITY EV>/NTS, INCLUDING MARANA'S 201 LFOUNDERS' DAY EVENT, FOR THE STATE OF ARIZONA'S CENTENNIAL CELEBRATION WHEREAS the State of Arizona will celebrate its centennial in February 2012; and WHEREAS the towns of Marana and Oro Valley are the largest population centers in the northwest Tucson region; and WHEREAS the communities share a long heritage of agriculture and ranching; and WHEREAS the two towns already have established a mutually beneficial working arrangement on a variety of issues; and WHEREAS the towns of Marana and Oro Valley desire to highlight the unique historical attributes of the northwest Tucson region. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Town of Marana desires to partner with the Town of Oro Valley to plan and carry out a celebration of the State of Arizona centennial that links individual special historical events in each community, such as Marana's 2011 Founders' Day celebration, with a broader recognition of the unique history of the northwest Tucson region. BE IT FURTHER RESOLVED that the Town Manager and staff are hereby directed and authorized to undertake all further tasks required or beneficial to plan and carry out a State of Arizona Centennial Celebration in partnership with the Town of Oro Valley, including sharing resources with the Town of Oro Valley and linking Marana's 2011 Founders' Day event to a larger celebration of the northwest Tucson region's unique history. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL, OF THE TOWN OF MARANA, ARIZONA, this 3`d day of August, 2010. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting -August 3, 2010 -Page 16 of 97 {00022180.DOC /} ~~~[ y~ ~~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council From: Erik Montague ,Finance Director Strategic Plan Focus Area: Not Applicable Item C 4 Subject: Ordinance No. 2010.12_Relating to Finance; amending the Town of Marana comprehensive fee schedule; and designating an effective date Discussion: At its May 4, 2010, regular meeting, the Town Council adopted the updated comprehensive fee schedule for the 2010-2011 fiscal year. Shortly thereafter, staff was made aware of several fee schedule items that had been reviewed by Council as part of an earlier study session and were inadvertently excluded from the version of the comprehensive fee schedule that was adopted. These items are used principally by the Environmental Engineering Division and are necessary for the provision of development-related services to the business community. Additionally, staff has recently recognized several additional fee schedule items that are either required by State of Arizona law or found in other ordinances and resolutions adopted by the Council. These items, which were also inadvertently excluded from the version of the comprehensive fee schedule adopted by Council, are included in this ordinance to bring the town into conformity with all applicable state and local laws. The proposed items for addition are used principally by the Parks & Recreation Department and Town Clerk's Office. This ordinance will correct the aforementioned errors in the comprehensive fee schedule and become effective on September 2, 2010. ATTACHMENTS: Name: Description: Type: D Ord, adopting_amended. fee schedule_(00022320).DOC Ordinance .Ordinance Staff Recommendation: Staff recommends adoption of the proposed ordinance. Suggested Motion: I move to adopt Ordinance No. 2010.12, amending the Town of Marana comprehensive fee schedule and designating an effective date. Regular Council Meeting -August 3, 2010 -Page 17 of 97 MARANA ORDINANCE NO. 2010.12 RELATING TO FINANCE; AMENDING THE TOWN OF MARANA COMPREHENSIVE FEE SCHEDULE; AND DESIGNATING AN EFFECTIVE DATE WHEREAS the Town Council is authorized by A.R.S. § 9-240 (A) to control the finances of the town; and WHEREAS the Town Council, via Ordinance No. 2010.07, adopted an amended comprehensive fee schedule for fiscal year 2010-2011 on May 4, 2010; and WHEREAS several fee items previously reviewed by the Town Council were inadvertently not included in the final version of the amended comprehensive fee schedule adopted by the Town Council; and WHEREAS Town staff has identified several additional fee items since adoption of the amended comprehensive fee schedule that are needed for compliance with state and local regulations; and WHEREAS amending the comprehensive fee schedule by adding these additional fees is in the best interests of the Town of Marana. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, AS FOLLOWS: SECTION 1. The Town of Marana comprehensive fee schedule adopted pursuant to Marana Ordinance No. 2010.07 is hereby amended by adding the following fees (only added fees are shown; all other fees remain unchanged): CLERK Liquor License Application; Acquisition of Control Change or $150.00 Per application Plus applicable Change of Agent State of Arizona fees. Bingo License; Class A $5.00 Per license Plus applicable .State of Arizona fees. Bingo License; Class B $25.00 Per license Plus applicable State of Arizona fees. Bingo License; Class C $50.00 Per license Plus applicable State of Arizona fees. DEVELOPMENT SERVICES Engineering -Environmental Archaeology Report; Class III Review $70.00 Per submittal Fee is based on estimated review time. Actual fees may be higher at rate of $70.00 per hour. Archaeology Report; Testing Plan Review $280.00 Per submittal Fee is based on estimated review time. Actual fees Regular Council Meeting -August 3, 2010 -Page 18 of 97 1 {00022320.DOC /} may be higher at rate of $70.00 per hour. Archaeology Report; Results of Testing Review $140.00 Per submittal Fee is based on estimated review time. Actual fees may be higher at rate of $70.00 per hour. Archaeology Report; Data Recovery Plan Review $280.00 Per submittal Fee is based on estimated review time. Actual fees may be higher at rate of $70.00 per hour. Archaeology Report; Results of Data Recovery $140.00 Per submittal Fee is based on estimated review time. Actual fees may be higher at rate of $70.00 per hour. PARKS 8 RECREATION Park Alcohol Permit $25.00 Per permit Park Facility Rental; Group Ramada $30.00 Per hour SECTION 2. The various town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this Ordinance. SECTION 3. All ordinances, resolutions, or motions and parts of ordinances, resolutions, or motions of the Council in conflict with the provisions of this Ordinance are hereby repealed, effective as of the effective date of this Ordinance. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. SECTION 5. This ordinance shall become effective on September 2, 2010. PASSED AND ADOPTED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 3rd day of August, 2010. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk Regular Council Meeting -August 3, 2010 -Page 19 of 97 APPROVED AS TO FORM: Frank Cassidy, Town Attorney 2 {00022320.DOC /} 6~ ~~ ~~. ~, ~x~A.~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council Item C 5 From: Cedric Hay ,Senior Assistant Town Attorney Strategic Plan Focus Area: Commerce Subject: Ordinance No. 2010.13: Relating to Business Regulations; amending spirituous liquor license fees addressed by Town Code section 9-1-3(B) to correspond with changes made to the comprehensive fee schedule adopted by Marana Ordinance No. 2010.12; and establishing an effective date Discussion: Marana Ordinance No. 2010.12 amends to the Comprehensive Fee Schedule for the town. One of the amendments establishes a separate fee for applications filed with the Arizona State Department of Liquor Licenses and Control relating to Acquisition of Control. This separate fee and the Town Code revision proposed by this Ordinance No. 2010.13 are being adopted to address a recent claim of possible confusion or contradiction between the language of the Town Code and the Comprehensive Fee Schedule. This Ordinance has the effect of deleting any mention of particular types of fees from Section 9-1-3(B) of the Town Code thus referring people to the Comprehensive Fee Schedule for specific information regarding fees for liquor licenses. Financial Impact: None, this Ordinance has no impact on the fee itself. ATTACHMENTS: Name: [] Amend Town Code Section 9-1-3B (00022280-2).DOC Description: Ordinance adopting TC 9-1-3(B) revision Type: Ordinance Staff Recommendation: Staff recommends approval of Ordinance 2010.13 amending Section 9-3-1(B) of the Town Code. Suggested Motion: I move to adopt Ordinance No. 2010.13, amending spirituous liquor license fees addressed by Town Code section 9-1-3(B) to correspond with changes made to the comprehensive fee schedule adopted by Marana Ordinance No. 2010.12; and establishing an effective date. Regular Council Meeting -August 3, 2010 -Page 20 of 97 MARANA ORDINANCE N0.2010.13 RELATING TO BUSINESS REGULATIONS; AMENDING SPIRITUOUS LIQUOR LICENSE FEES ADDRESSED BY TOWN CODE SECTION 9-1-3(B) TO CORRESPOND WITH CHANGES MADE TO THE COMPREHENSIVE FEE SCHEDULE ADOPTED BY MARANA ORDINANCE N0.2010.12; AND ESTABLISHING AN EFFECTIVE DATE WHEREAS Marana Ordinance 2010.12 adopted on August 3, 2010 modified the Compre- hensive Fee Schedule; and WHEREAS the Town believes that Section 9-1-3(B) ofthe Marana Town Code, relating to spirituous liquor license fees, is already consistent with the modifications to the Comprehensive Fee Schedule, but desires to eliminate any possible confusion resulting from its particular wording; and WHEREAS the Town Council finds that revision of Section 9-1-3(B) of the Marana Town Code is in the best interests of the Town and its residents. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA, as follows: SECTION 1. Title 9 of the Marana Town Code is hereby revised by amending spirituous liquor license fees addressed in paragraph B of Section 9-1-3 ("Fees; payment; term of licenses; an- nual renewal required") as follows, with deletions shown with ~t text: B. In addition to the business license fee, every person, firm, corporation, or other entity ap- plying for a spirituous liquor license, under the provisions of A.R.S. § 4-101, et seq.; whe4hcr it ho fnr ~n nrinin~l lincneo nr 4r~nefcr nF lincncc shall tender to the town a fee in an amount established by a fee schedule adopted by the council and amended from time to time. The fee shall be tendered to the town contemporaneous with the filing of an ap- plication to the Arizona State Department of Liq- uor Licenses and Control. This fee shall not be applicable to wholesalers licensed under A.R.S. § 4-209. SECTION 2. This Ordinance shall become effective on the effective date of Marana Ordin- ance No. 2010.12. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL, OF THE TOWN OF MARANA, ARIZONA, this 3`d day of August, 2010. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson Frank Cassidy, Town Attorney Regular Council Meeting -August 3, 2010 -Page 21 of 97 (00022280.DOC / 2} "~`~r'` i.~'F ~~ ak P<C%A 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council From: Cedric Hay ,Senior Assistant Town Attorney Strategic Plan Focus Area: Community Building Item C 6 Subject: Resolution No. 2010-74: Relating to Building Codes; approving and authorizing the Mayor to execute the extension of an intergovernmental agreement with Pima County for the regulation of public property regarding Code compliance for public buildings Discussion: The Town of Marana and Pima County entered into an intergovernmental agreement for regulation of public property within each other's jurisdictional territory dated January 2, 2001 (the "Original Agreement"). The Original Agreement authorizes Pima County to regulate its own buildings for building code compliance when they are located within the Marana town limits. Likewise, the Original Agreement provides that the Town of Marana is responsible for building code compliance of Town buildings located in unincorporated Pima County. The term of the Original Agreement ended on June 30, 2005 and was extended for five years pursuant to its terms and Resolution 2005-73. This item would extend the Original Agreement for an additional two-year period, through June 30, 2012. Financial Impact: None. ATTACHMENTS: Name: O Reso re 2nd Extension of County-Town IGA (00022267- 2),_DOG ^ amendment_extendng jurisdictional permitting agreement (00022256).DOC O IGA_with Pima County_for regulation of public property {00022268).PDF Description: Reso Approving 2nd extension of PC bldg codes IGA Exhibit A -Second Extension to IGA with Pima County IGA with Pima County regarding code compliance Type: Resolution Exhibit Backup Material Regular Council Meeting -August 3, 2010 -Page 22 of 97 Staff Recommendation: Staff recommends approval of the proposed IGA extension providing for building code compliance over public property owned by each jurisdiciton located in the other's jurisdictional boundaries. Suggested Motion: I move to adopt Resolution No. 2010-74, approving and authorizing the Mayor to execute the extension of an intergovernmental agreement with Pima County for the regulation of public property regarding Code compliance for public buildings. Regular Council Meeting. -August 3, 2010 -Page 23 of 97 MARANA RESOLUTION N0.2010-74 RELATING TO BUILDING CODES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE EXTENSION OF AN INTERGOVERNMENTAL AGREEMENT WITH PIMA COUNTY FOR THE REGULATION OF PUBLIC PROPERTY REGARDING CODE COMPLIANCE FOR PUBLIC BUILDINGS WHEREAS the Town of Marana and Pima County desire to extend the term of an intergo- vernmental agreement for the regulation of public property within each other's jurisdictional territory originally dated January 2, 2001; and WHEREAS the Mayor and Council of the Town of Marana feel it is in the best interests of the public to extend this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the "Second Amendment Extending Intergovernmental Agreement be- tweenPima County and the Town of Marana for Regulation of Public Property Within Each Other's Jurisdictional Territory" 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. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and au- thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga- tions, and objectives of the aforementioned intergovernmental agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MA- RANA, ARIZONA, this 3`d day of August, 2010. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting -August 3, 2010 -Page 24 of 97 {00022267.DOC / 2} SECOND AMENDMENT EXTENDING INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND THE TOWN OF MARANA FOR REGULATION OF PUBLIC PROPERTY WITHIN EACH OTHER'S JURISDICTIONAL TERRITORY This Intergovernmental Agreement Amendment ("IGA") is entered into by and between Pima County, a body politic and corporate of the State of Arizona ("County") and Town of Marana, an Arizona Municipal Corporation ("Marana") pursuant to A.R.S. § 1 I-952. Recitals A. County and Marana entered into an IGA, (the "Original Agreement") attached, for the regulation of public property within each other's jurisdictional limits dated January 2, 2001, terminating on June 30, 2005. B. The Original Agreement, which allows a total of four five-year renewals, was retroactively extended for an additional five years on October 2, 2007, and terminating on June 30, 2010. C. County and Marana desire to extend the IGA for an additional two years. Agreement NOW, THEREFORE, County and Marana, pursuant to the above, and in consideration ofthe matters and provisions hereinafter set forth, do mutually agree as follows: 1. The IGA is retroactively extended for an additional two years, effective July 1, 2010 and terminating June 30, 2012, unless sooner terminated or extended pursuant to the provisions of the original IGA. 2. All other terms and provisions of the Original Agreement shall continue in full force and effect. In Witness Whereof, County has caused this Intergovernmental Agreement to be executed by the Chairman of its Board of Supervisors, upon resolution of the Board and attested to by the Clerk of the Board, and Marana has caused this Intergovernmental Agreement to be executed by the Mayor and Town Council upon resolution of the Town of Marana and attested to by: Rev. July 2010 1 Regular Council Meeting -August 3, 2010 -.Page 25 of 97 PIMA COUNTY: Chairman Board of Supervisors ATTEST: Clerk of the Board MARANA: Mayor ATTEST: Clerk of the Board Intergovernmental Agreement Determination The foregoing Intergovernmental Agreement between Pima County and the Town of Marana has been reviewed pursuant to A.R.S. § 11-952 by the undersigned, who have determined that it is in proper form and is within the powers and authority granted under the laws of the State of Arizona to those parties to the Intergovernmental Agreement represented by the undersigned. PIMA COUNTY: Deputy County Attorney TOWN OF MARANA Town Attorney Rev. July 2010 Regular Council Meeting -August 3, 2010 -Page 26 of 97 2 Ct~~tTRACT AMENDMENT N0, _ fihii number mutt appear on sit illYOtCl1, oorra~pondancs snd daW-mints partaintnp to this ....~_. Intergovernmental Agreement between Pima County and the Town of Marana for Regulation of Public Property Within Each Other's Jurisdictional Territory This Intergovernmental Agreement is entered into pursuant to A.RS, § 11-952 by and between Pima County, a body politic and corporate of the State of Arizona, (the "County") and the Tawn of Marana, a political subdivision of the State of Arizona, (the "Town") for the purpose of regulating public property within each other's jurisdictional territory. Recitals A. Town, pursuant to A.R.S. § 9-244 and Title 9, Chapter 7, Article 1, Arizona Revised Statutes, and County, pursuant to A.R.S. § 11-$6I et seq., are authorized to regulate the quality, type of material and workmanship of all aspects of building construction and to adopt uniform codes regulating such construction. B. County and Town may contract for services and enter into agreements with one another for joint or cooperative action pursuant to A.RS. § 11-951, et seq. C. The purpose of this Jntergovernmental Agreement is to establish jurisdictional authority for compliance with building and development codes for property owned by each jurisdiction in the other's jurisdictional territory. D. County and Town wish to enter into this Agreement whereby each party will be responsible for the design and construction compliance of its buildings and other structures within the territorial jurisdiction of the other party with the other party's building, plumbing, electrical, fire prevention and mechanical codes and to authorize the issuance of appropriate permits by each party for its buildings and other structures in such instances. 1 NOW, THEREFORE, the County and the Town, pursuant to the above, and in consideration ~ of the matters and things hereinafter set forth, da mutually agree as follows: '~ c ,., Regular Council Meeting -August 3, 2010 -Page 27 of 97 Agreement 1. Obligations of the Parties. a. Town. The Town shall be responsible for the design and construction compliance with adopted building, plumbing, electrical, fire prevention and mechanical codes of Town buildings and other structures it builds or causes to be built within the territorial jurisdiction of the County. The Town will review and approve the plans and issue the required permits in connection therewith, and perform required inspections. i. Where a fire district formed and existing under the provisions of Title 9, Chapter 9, Article i, Arizona Revised Statutes, has legally adopted the fire prevention code adopted by the State Fire Marshall, the. Town shall submit plans for a building or other structure proposed to be constructed within that fire district to the fire district for review and approval. ii. Where a fire district has not been formed and does not exist under the provisions of Title 9, Chapter 9, Article 1, Arizona Revised Statutes, the Town shall submit plans for a building or other structure proposed to be constructed to the State Fire Marshall for review and approval. b. County. The County shall be responsible for the design and construe#ion compliance with adopted building, plumbing, electrical, fire prevention and mechanical codes of County buildings and other structures it builds or causes to be built within the territorial jurisdiction of the Town. The County will review and approve the plans and issue the required permits in connection therewith, and perform required inspections. i. Where a fire district formed and existing under the provisions of Title 9, Chapter 9, Article 1, Arizona Revised Statutes, has legally adopted the f re prevention code adopted by the State Fire Marshall, the County shall submit plans for a building or other structure proposed to be constructed within that fire district to the fine district for review and approval. ii. Where a fire district has not been formed and does not exist under the provisions of Title 4, Chapter 9, Article 1, Arizona Revised Statutes, the County shall submit plans for a building or other structure proposed to be constructed to the State Fire Marshall for review and approval. 1 2. Fees. Where this Agreement is applicable, if any fees are required in connection with design '~ (plan review fees) and construction {fees for permits for code activity), they shall be paid to ~ S itself by the jurisdiction responsible under this Agreement for compliance. 1~ 3. Term. The term of this Intergovernmental Agreement shall be .from the date it is recorded ~ with the Pima County Recorder and shall terminate on June 30, 2005, unless sooner ~ terminated or further extended pursuant to the provisions of this Agreement. The parties ~ 2 Regular Council Meeting -August 3, 2010 -Page 28 of 97 may renew this Agreement for up to four additional five year periods or any portion thereof. Such extension shall be by formal written amendment executed by the parties. 4. Compliance with All Laws. The Parties shall cvrnply with all federal, state and local laws, rules, regulations, standards and Executive orders, without limitation to those designated within this Agreement. Any changes in the governing laws, rules and regulations during the terms of this Agreement shall apply but do not require an amendment. 5. Responsibility. To the extent permitted by law, each party agrees to be responsible for the acts and omissions of its officers, agents and employees taken pursuant to this Agreement. 6. Non-Discrimination. This Agreement is subject to Executive Order 75-5, as amended by Executive Order 99-4, which is incorporated into this Agreement by reference as if set forth in full herein. 7. Remedies. Either party may pursue any remedies provided by law for the breach of this Agreement. No right or remedy is intended to be exclusive of any other right or remedy and each shall. be cumulative and in addition to any other right or remedy existing at law or at equity or by virtue of this Agreement. 8, Severability. Tf any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable to the full extent permitted by Iaw. 9. Entire Agreement. This document constitutes the entire agreement between the parties pertaining to the subject matter hereof, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superseded and merged herein. This Agreement may be modified, amended, altered or extended only by a written amendment signed by the parties. lU. Notification. All notices or demands upon any party to this agreement shall be in writing, unless other forms are designated elsewhere, and shall be delivered in person or sent by mail addressed as follows: Town of Marana Town Manager 13251 N. Lon Adams Marana, AZ 85653 Pima County Development Services Director 201 North Stone Avenue, l" Floor Tucson, AZ 85701 1 11. Termination. a. Termination for convenience. Either Party may, at any time and without cause, cancel this Agreement by providing 30 days written notice to the other Party of intent to cancel. 3 t~ Regular Council Meeting -August 3, 2010 -Page 29 of 97 b. Termination for Cause. If, in the judgment of either party to this Agreement, the other party does not perform in accordance with the conditions of this Agreement, or is otherwise in default of any provision of this Agreement, the party claiming non- performance or default shall give written notice to the other party specifying the nature of the non-performance or default. if the non-performance or default is not corrected within 30 days after receipt of such written notice, or if the non-performing or defaulting party fails to diligentiy pursue remedies for corrections which require more than 30 days to complete, the party claiming non-performance or default may terminate this Agreement. c. .4.R.S. ~ 38-SII. This Intergovemmental Agreement is subject to the provisions of A.R.S. § 38-511. d. Non Appropriation. Notwithstanding any other provision in this Agreement, this Agreement may be terminated if, for any reason, the Pima County Board of Supervisors or the Marana Town Council dues not appropriate sufficient monies for the purpose of maintaining this Agreement. In Witness Whereof; County has caused this Intergovernmental Agreement to be executed by the Chair of its Board of Supervisors, upon resolution of the Board and attested to by the Clerk of the Board and the Town has caused this Intergovernmental Agreement to be executed by the Mayor upon resolution of the Mayor and Council and attested to by its Clerk. /~ -. k .,.. Loci-GodBs~iiaii~/ '~ :~ ~ : ~ f,,'~ ~ f ;; Clerk ` t'h*r1iEb~~~ ~ ~'. v a ,~~1 %' 'r'~ ~,,, ..: '• r ~ ~. ~; i~ . 7 r ~ ~, . ;',r ob• Y1MA C:VUNTY: ~R~.,a„~.,.~,.-- Sharon Bronson, Chair Board of Supervisors ~.>a-M a ~ toln +~ ++3 +'1 4 Regular Council Meeting -August 3, 2010 -Page 30 of 97 ATTEST: TOWN OF IVIARANA: i 1 . ,~ Intergovernmental Agreement Determination The foregoing Intergovernmental Agreement between the town of Marana and Pima County has been reviewed pursuant to A.R.S. § l 1-952 by the undersigned, who have determined that is in proper form and is within the powers and authority granted under the laws of the State of Arizona to those .parties to the Intergovernmental Agreement represented by the undersigned. TOWN OF 11/IARANA '~" Town Attorney PIMA COUNTY Deputy County Attorney I I i r c. r s Regular Council Meeting -August 3, 2010 -Page 31 of 97 ~'~""1~'`' ~~. ~~~ ~°"A~.~.~'1.i 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council Item C 7 From: Rodney Campbell ,Public Information Officer Strategic Plan Focus Area: Community Building Subject: Resolution No. 2010-75: Relating to Community Development; authorizing the Town to support Up with People performances and community service in the Town of Marana Discussion: Up with People, an international performance group that brings together approximately 100 participants from more than 20 countries, will be in Marana from August 16-23. The cast will perform a combined three shows on August 21 and 22 at Mountain View High School. A team of approximately 15 staff facilitators travels with participants to plan educational opportunities and community service projects, organize and promote each cast visit, ensure success for each performance and create a safe, respectful and fruitful learning environment for the participants and communities. Up with People participants become involved in the local customs and cultures of each community by taking part in service projects that benefit the communities in which they are performing. The group's mission is to spark people to action in meeting the needs of their communities, countries and the world. Cast members travel for one or two semesters each year on tours that begin in January and July. They live with local families and share meals, learn language basics, join in gatherings and gain an insight into the daily lives of their hosts. The organization is seeking host families in the Marana area. Financial Impact: None. ATTACHMENTS: Name: Description: Type: ~ Up_with_People resolution.doc Resolution Resolution Staff Recommendation: Regular Council Meeting -August 3, 2010 -Page 32 of 97 Staff recommends approval of the proposed resolution. Suggested Motion: I move to adopt Resolution No. 2010-75, authorizing the Town to support Up with People performances and community service in the Town of Marana. Regular Council Meeting -August 3, 2010 -Page 33 of 97 MARANA RESOLUTION NO.2010-75 RELATING TO COMMUNITY DEVELOPMENT; AUTHORIZING THE TOWN TO SUPPORT UP WITH PEOPLE PERFORMANCES AND. COMMUNITY SERVICE IN THE TOWN OF MARANA WHEREAS Up with People is an international entertainment group that improves the lives of those in the communities in which it performs through service programs; and WHEREAS Up with People will be in Marana as part of its 2010 world tour from August 16- 23; and WHEREAS the Town of Marana has projects that would be bettered through the assistance of Up with People participants. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the Town of Marana desires to support Up with People's performances and community improvement projects in the Town of Marana. BE IT FURTHER RESOLVED that the Town Manager and staff are hereby directed and authorized to work with the Up with People organization to identify projects that would best benefit from assistance by the non-profit organization's participants and support personnel. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 3rd day of August, 2010. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting -August 3, 2010 -Page 34 of 97 ~~~ 4 I REGULAR COUNCIL MEETING MINUTES 11555 W. Civic Center Drive, Marana, Arizona 85653 Council Chambers, July 20, 2010, at or after 7:00 PM Ed Honea, Mayor Herb Kai, Vice Mayor Russell Clanagan, Council Member Patti Comerford, Council Member Carol McGorray, CouncilMember Jon Post, Council Member Roxanne Ziegler, Council Men~her REGULAR COUNCIL MEE~I,ING CALL TO ORDER AND ROLL CALL The meeting was called to order by Mayor Honea at 7:06 p.n~. All Council Members were present except Council Member Clanagan; who participated telephonically beginning at 7:40 p.m. PLEDGE OF ALLEGIANCE/INVOCATION/MOMENT OF SILENCE Led by Mayor Honea. APPROVAL OF AG I- N DA Motion to approi~c~ ~~rn~~ect byCoeinci! Member McGorray, second by Council Member Ziegler. Motion carried u~~rrf~imoc~sl~ G-0. CALL TO THE PUBLIC ` Gerald Peters addressed Council regarding his frustration over the fees associated with Colonia permits and. fees and Colonia designations in general He was also concerned about the way staff has dealt with him over the last couple of years and the Colonia issue overall. PROCLAMATIONS MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS There were no reports. MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS There were no reports. Regular Council Meeting -August 3, 2010 -Page 35 of 97 July 20, 2010 Couneil Meeting Minutes PRESENTATIONS CONSENT AGENDA Motion to approve moved by Council Member Post, second by Council Member Ziegler. Ms. Bronson noted that Item C.3 contained an emergency clause and required a roll call vote. Motion carried unanimously 6-0. C 1: Relating to Employer Support of the Guard and Reserve (ESGR) C 2: Resolution No. 2010-62: Relating to Real Property; adopting by reference the relocation assistance rules and regulations found in the Uniform Relocation Assistance and Real Property Acquisition Act found at 49 C.F.R. part 24, as required by the amendments to Arizona Revised Statutes Section 11-968 C 3: Ordinance No. 2010.09: Relating to Parks and Recreation; amending the Marana Town Code Title 13 "Parks and Recreation," Section -1 ~-1=3 "Use and occupancy rules and regulations" regarding possession and discharge of f firearms in town public parks; and declaring an emergency C 4: Resolution No. 2010-63: Relating to Economic Development; approti ing and authorizing the Mayor to execute a funding agreement with the Marana Chamber of Commerce, Inc., to support the Marana Visitor Center and economic development activities on behalf of the Town of Marana C 5: Resolution No. 2010-64: Relating to Real Estatc; accepting the dedication of a portion of Gladden Farms Et Ic~cks 18 and 20 Common Area A-12 as right-of--way, and reclassifying and desigmatin~~ a E~ortion of the adjacent open space dedicated to the Town by the subdivision plat of G I~zd~ien Farms Blocks 18 and 20 as public right-of--way C 6: Resolution No. 2010-65: Relating to Tntergovernmental Relations; authorizing and directing `t'own of Marana representatives concerning proposed Arizona League of Cities and Towns Resolutions C 7: Ordinance No. 2010.1 !l: Relating to Parks and Recreation; amending the Marana Town Code Title 13 "Parks and Recreation," adding chapter 13-2 entitled "Fingerprinting and criminal history records checks of Parks and Recreation personnel and volunteers"; and designating an effective date C 8: Resolution No. 2010-66: Relating to Development; approving and authorizing the Mayor to execute the Willow Ridge Reconciliation Agreement C 9: Resolution No. 2010-67: Relating to Public Works; approving and authorizing the Mayor to execute an intergovernmental agreement with the Arizona Department of Transportation relating to authorized appropriations for the American Recovery and Reinvestment Act of 2009 for the pavement preservation of Marana Road between I-10 and the western Town limits Regular Council Meeting -August 3, 2010 -Page 36 of 97 2 July 20, 2010 Council Meeting Minutes C 10: Minutes of the June 15, 2010 and June 22, 2010 special council meeting and June 15, 2010 regular council meeting LIQUOR LICENSES L 1: Relating to Liquor Licenses; recommendation to the state liquor board regarding an Acquisition of Control Change submitted by Nicholas Carl Guttilla on behalf of Wingstop, located at 3662 W. Ina Road Jocelyn Bronson addressed Council and noted that there had been no protests on this item. The applicant, Mr. Guttilla, addressed Council regarding the fee associated with this item and requested that Council revised the ordinance to reflect different license requirements. Currently, the town charges one fee across the board of $500. Cedric Hay addressed Council, noting that revisions to the fee schedule are being reviewed to address this and other items. He also noted that. Council is the correct body to grant waivers or accept modifications to the fee schedule as it stands. Staff recommended that until a revision is made to the ordinance, the fee does apply. There is no objection to the application, but there has been staff time associated with processing the application regardless of the type of license. Council .Member McGorray asked what. the fee is currently. Council Member Ziegler asked if this fee is being clarified in the rude. The fee is $500 and the schedule is being reviewed. Mr.'Guttilla further clarifi~J his position. Motion by Council Member Comerford, second by Vice Mayor Kai, to not protest the application and to charge the standard Gduor7icer~se fee found in the town ordinance. Motion carried unanimously 6-0. BOARDS, COMMISSIONS AND COMMITTEES COUNCIL ACTION A 1: PUBLIC HEARING: Resolution No. 2010-68: Relating to Development; approving a conditional use p8riilit to allow the development of a new wireless communication facility. in Block L ~~f the Dove Mountain Resort II Final Plat Presented by Lisa Shafer. Mayor Honea announced the public hearing was open. There were no s}~eakers. Ms. Shafer noted that there were no protests. Mayor Honea closed the public hearing. Motion to approve moved by Council Member McGorray, second by Council Member Ziegler. Motion carried unanimously 6 0. A 2: Resolution No. 2010-69: Relating to Recreation; approving and authorizing the Mayor to execute an intergovernmental agreement between the.Arizona Game and Fish Commission and the Town of Marana defining and regulating hunting areas within the Town of Marana Presented by Jane Fairall. Officer Diane Tilton with Arizona Game and Fish department addressed Council, noting that their department had been working with the poli~}c~~e~~ chiefhover the past two years to address complaints from areas where there was Regular Cou1nci~ivreEting to g~s~~t ~~~age"37"o~~OrturiltleS for people to hunt now. Council Member July 2Q 2010 Council Meeting Minutes Post asked who is responsible for the trash left behind and is there any way to strengthen littering laws within the town and monitor this aspect. Ms. Fairall noted that this is an IGA and not an ordinance and state law regulates hunting and the town cannot have ordinances regulating differently from the state. The town can enforce state laws but this is just an agreement about what areas will be allowed for hunting. Vice Mayor Kai asked if hunters would be required to obtain a specific license for areas where they are hunting. Officer Tilton replied that it depends on what you are hunting and the area. In response to a question from Mayor Honea, Ms. Fairall noted that there is currently no prohibition in the town code for discharging a firearm within the town. There is a state law prohibiting the discharge of a firearm within city or town limits with the exception for an area designated by the Game and Fish department as allowable hunting area. That is what this IGA does. Motion to approve moved by Vice Mayor Kai, second by Council Member Ziegler. Motion carried unanimously 6-0. A 3: Resolution No. 2010-70: Relating to Economic Development; adopting the Expedited Development Review Incentive Program and authorizing the i ~~~~ n N[anager to administer it Presented by Josh Wright as an incentive program similar to the job incentive program - both out of the Economic Development Roadmap. He gave background, and stated the conditions to take advantage of the incentive program. Mr. Wright noted that Kevin Kish and his team have been very instrumental. in putting p~~licies i~~ place to help develop this. Council Member Ziegler thanked Mr. R'right for hip work on this and on the Roadmap. Motion to approve moved by Council Member McGorray, second by Council Member Ziegler. Motion carried uita~iirnnusly 6-0. A 4: PUBLIC HEA It I N (~: Ordinance No. 2010.11: Relating to Development; approving a rcz~~ning creating the Marana Regional Landfill Specific Plan Vice Mayor Kai recused himself tcom the dais due to a conflict of interest on this item. Ms. Bronson noted that Council Member Clanagan. wished to be included telephonically for this item. Council Member Clanagan was connected at 7:40 p.m. and the presentation continued. Mayor Honea announced the meeting in public hearing. Presented by Kevin Kish who then turned the presentation over to Michael Racy, representing DKL Holdings. Other speakers on behalf of the applicant were Garth Bowers, project manager, from Cornerstone Environmental Engineering, William Soukop, hydrogeologist from Cornerstone Environmental Engineering speaking on groundwater issues and Deborah L. Gray, Ph.D. from Lawhon & Assocates in Ohio, doctor of toxicology, speaking on the public health aspects of landfills. Sixteen speaker cards were presented in support of the landfill including Anna Felix, Bill Essenmacher, Ernie Felix, Marge Brooks, Larry Sjulstad, Chuck McGill, Concha Urquides, Warren Hatcher, Marjorie Smith, Richard Redman, Matthew Vorholzer, Steve Miklosi, Rebecca LoPorto, Rebecca Vorholzer, Jimmy Gawlin, and Patty McGill. Thirty-seven speaker cards were presented in opposition to the landfill including David ~ L tz Karl MMrtzie Morton, Seth Lewis, Elizabeth Maxam, Steve Regular Council ee mg - F~ugu§t~`~1~11~ 'Rage 3>~3f'g7 4 July 20, 2010 Council Meeting Minutes Maxam, Eric Ramirez, Travis L. Pasqual, Frank Triumph, Jorge J. Anda, Rick Faust, Charles Goddard, Nicki James, Debbie Rogers, Jens T. Hill, Kris James, Elaine Ramirez, Albert Lannon, Charles Goddard, Jr., Thomas Hill, Terri Faust, Pat McElroy, Joan Travis-Triumph, Robert Ruppelius, Pam Ruppelius, Nita Storzer, Steve Storzer, Melissa Rohleck, Tanya Anway, David Anway, James Bailey, Janice Mitich, Pak and Christina Chan, David Flood, Dan Rogers, Linda Storzer and Mimi Battin. Mayor Honea asked for a motion to continue this item to August 17. The public hearing will still be open based on the recommendation from Mr. Cassidy that in case something comes up in the meantime there will be an opportunity for people to address Council. Council Member Ziegler asked that it be clear to everyone that on August 17 that the continuance is because the development agreement is not complete, but it will be finished on August 17 and the recommendations to Council will be in the form of two motions - one in favor of the rezoning and one against the rezoning. Those-will be the only items for consideration. Motion to continue Ordinance No. 2010.11 until Au; ust 17 moved by Cou~tcil Member Comerford, second by Council Member Ziegler. Motion curried unanimously 6-0. ITEMS FOR DISCUSSION/POSSIBLE ACTION D 1: Legislative/Intergovernmental Report: Discussion/Direction/Action regarding all pending state and federal legislation and report on recent meetings of other legislative bodies There was no report. EXECUTIVE SESSIONS E I: Executive Session pursuant to A.R.S. §38-431.03 (A)(3), Council may ask for discussion or con~ul~ation for legal ad~~ice ~~th the Town Attorney concerning any matter listed on this ~~~cnda E 2: Executive Session pursuant t~~ ~1. K.S. § 38-431.03(A)(3),(4) and (7), discussion or consultation for legal advice ~~~ith the Town's attorneys and discussion and to consider its position and instruct the Tc~~~ n Manager and staff concerning (1) the lawsuit entitled Town of Marana v. Pima (~c~unty/Pima County v. Marana (consolidated), Maricopa County Superior Court No. CV2008-001131, (2) pending legal issues, settlement discussions and contract negotiations relating to the transition of Marana wastewater collection and treatment to the Town of Marana FUTURE AGENDA ITEMS Notwithstanding the mayor's discretion of what items to place on the agenda, if three or more council members request an item to be placed on the agenda, it must be placed upon the agenda for the second regular town council meeting after the date of the request (Marana Town Code, Title 2, Chapter 2-4, Section 2-4-2 B) Regular Council Meeting -August 3, 2010 -Page 39 of 97 July 20, 2010 Council Meeting Minutes ADJOURNMENT Motion to adjourn moved by Council Member Post, second by Council Member Comerford Motion carried unanimously 6-0. The meeting was adjourned at 10:29 p.m. CERTIFICATION I hereby certify that the foregoing are the true and correct minutes of the Marana Town Council meeting held on July 20, 2010. I further certify that a quorum was present. Jocelyn C. Bronson, Town Clerk Regular Council Meeting -August 3, 2010 -Page 40 of 97 6 July 20, 2010 Council Meeting Minutes ~~~ ~~~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council Item C 9 From: Frank Cassidy ,Town Attorney Strategic Plan Focus Area: Commerce Subject: Resolution No. 2010-76: Relating to Development; adopting a notice of intent to enter into an amendment to the retail development tax incentive agreement for the Marana Spectrum project proposed to be located at the southeast quadrant of Interstate 10 and the future Twin Peaks Interchange Discussion: Staff plans to bring to the Council for its consideration at the August 17, 2010 meeting an amendment to the December 2007 retail development tax incentive agreement for the Marana Spectrum development project located in the southeast quadrant of the Interstate 10 and the Twin Peaks interchange. A.R.S. § 9-500.11(K) requires a city or town to adopt a notice of intent to enter into a retail development tax incentive agreement at least 14 days before approving the agreement. The First Amendment to Marana Spectrum Development Agreement and the original Marana Spectrum Development Agreement are provided as part of the backup materials for this item. They contain the retail tax incentive which brings the amendment within the purview of the statute. This First Amendment to Marana Spectrum Development Agreement was presented for discussion at the July 27 study session. One substantive change has been made to the draft presented at that meeting. The interest rate, which was 6.5% in the original agreement, has been reduced to 5%. Kimco had previously agreed to this interest rate reduction, but it was inadvertently omitted from the draft presented on July 27. Included with the backup materials is a redline/strikeout comparison showing the changes between the draft presented on July 27 and this revised draft. ATTACHMENTS: Name: ~ Reso Marana Spectrum DA Amendment notice of intent_j00022361).DOG ^ First Amendment Marana Spectrum DA (00022362). DOC Description: Reso Adopting Marana Spectrum DA Notice of Intent First Amendment to Marana Spectrum DA Type: Resolution Backup Material ^ Replacement Exhibit G Regular Council Meeting -August 3, 2010 -Page 41 of 97 C1_.pdf Exh A to DA: Replacement Exhibit C and C1 Exhibit O First Amendment 6 July 2010-00022362.pdf Redline Comparison vs version presented July 27 Backup Material O Resolution 2007-229.pdf 2007 Marana Spectrum DA and Reso Backup Material Staff Recommendation: Staff recommends adoption of Resolution No. 2010-76, adopting a notice of intent to enter into an amendment to the retail development tax incentive agreement for the Marana Spectrum project proposed to be located at the southeast quadrant of Interstate 10 and the future Twin Peaks Interchange. Suggested Motion: I move to adopt Resolution No. 2010-76, adopting a notice of intent to enter into an amendment to the retail development tax incentive agreement for the Marana Spectrum project. Regular Council Meeting -August 3, 2010 -Page 42 of 97 MARANA RESOLUTION N0.2010-76 RELATING TO DEVELOPMENT; ADOPTING A NOTICE OF INTENT TO ENTER INTO AN AMENDMENT TO THE RETAIL DEVELOPMENT TAX INCENTIVE AGREEMENT FOR THE MARANA SPECTRUM PROJECT PROPOSED TO BE LOCATED AT THE SOUTHEAST QUADRANT OF INTERSTATE IO AND THE FUTURE TWIN PEAKS INTERCHANGE WHEREAS Town staff has negotiated the terms of a proposed amendment to the December 2007 retail development tax incentive agreement for the Marana Spectrum development project, to be located in the southeast quadrant of Interstate 10 and the future Twin Peaks interchange; and WHEREAS A.R.S. § 9-500.11(K) requires a city or town to adopt a notice of intent to enter into a retail development tax incentive agreement at least 14 days before approving the agreement; and WHEREAS Town staff plans to bring the proposed First Amendment to Marana Spectrum Development Agreement to Town Council for its consideration at the August 17, 2010 meeting. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Town of Marana hereby issues this notice of intent to enter into the Marana Spectrum development agreement, a retail development tax incentive agreement, at the August 17, 2010 Marana Town Council meeting. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL, OF THE TOWN OF MARANA, ARIZONA, this 3`d day of August, 2010. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney Regular Council Meeting -August 3, 2010 -Page 43 of 97 {00022361.DOC /} FIRST AMENDMENT TO MARANA SPECTRUM DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA This First Amendment to Marana Spectrum Development Agreement (this "Amendment") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and KIMCO MARANA L.P., a Delaware limited partnership, formerly known as Kimco Barclay Marana, L.P. (the "Owner/Developer"). The Town and the Owner/Developer are collectively referred to in this Agreement as the "Parties," and each is sometimes individually referred to as a "Party." RECITALS A. Owner/Developer and the Town are parties to that certain Marana Spectrum Development Agreement, dated December 22, 2007, a copy of which was recorded at Docket 13211, Page 951, in the records of Pima County, Arizona, on December 28, 2007 (the "Agreement"). B. The Town adopted the Agreement by Marana Resolution No. 2007-229, dated December 18, 2007 (the "Resolution"). C. Pursuant to that certain Assignment of Partnership Interest in Kimco Barclay Marana, L.P. (the Assignment"), Barclay Holdings XLVIII, LLC, an Arizona limited liability company ("Barclay") assigned to Kimco Developers, Inc., a Delaware corporation ("Kimco") all of Barclays right, title and interest in and to Owner/Developer. The Amendment evidencing the Assignment was filed with the Arizona Secretary of State on September 18,2009, as File No. 3007118. D. The Parties now desire to amend the Agreement in accordance with the terms and conditions set forth below. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises made in this Amendment, the Parties agree as follows. I. Incorporation of the Recitals. The foregoing Recitals are incorporated herein by this reference. 2. Interest. Paragraph 1.3.10 of the Agreement is amended by replacing "at the rate of 6.5% per annum" with "at the rate of 5% per annum". Regular Council Meeting -August 3, 2010 -Page 44 of 97 3. Initial Development Plan. The following words are hereby deleted from Section 2.3 of the Agreement: "within 36 months of the date the Interchange is completed by the Arizona Department of Transportation and first open. for vehicular traffic and use by the general public". 4. Minimum Construction Obli ag tion. Section 2.4 of the Agreement is hereby deleted. Public Improvements Construction and Reimbursement. Section 3.1.2 of the Agreement is hereby deleted, and the following is inserted in its place. 3.1.2 Reimburse the Town $4,467,281.33, which is the Public Improvement Costs for the Public Improvements which have now been completed by the Town, as detailed on Exhibit C 1 (attached to this Amendment), which reimbursement shall occur within sixty (60) days following the opening of the Interchange for vehicular traffic and use by the general public. 6. Reimbursement Amount. The first line of Section 6.1.2 of the Agreement is hereby deleted, and the following is inserted in its place: "From and after the issuance of certificates of occupancy for the Initial Minimum Improvements," 7. Reimbursement Account. Section 6.2.1 of the Agreement is hereby deleted, and the following inserted in its place. 6.2.1. The expiration of this Agreement, as described in Section 8.1 as modified by this Amendment. 8. Other Impact Fees. The words "the ninth anniversary of the Effective Date of this Agreement" are hereby deleted from the last line of Section 5.2 of the Agreement, and the following are inserted in their place: "the ninth anniversary of the "Amendment Effective Date" as defined below in this Amendment." 9. Development Regulations. The words "for a period of five years from Effective Date of this Agreement" shall be deleted from the fifth sentence of Section 2.1 of the Agreement, and the following is inserted in their place: "until the expiration of this Agreement." In addition, the penultimate sentence of Section 2.1 of the Agreement is hereby deleted, and the following is inserted in its place: "The immediately preceding sentence shall terminate on the expiration of this Agreement." lO.Owner/Developer's Environmental Mitigation Contribution. The following is hereby added to the conclusion of Article 4 of the Agreement: "Owner/Developer shall make such payment concurrently with the issuance of certificates of occupancy for all the Initial Minimum Improvements." 11. Term. The second sentence of Section 8.1 of the Agreement is hereby deleted, and the following inserted in its place. 2 Regular Council Meeting -August 3, 2010 -Page 45 of 97 The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the earliest of the following: (a) when the total amount of all Reimbursement Payments (see Section 6.4 above) equals Thirty Million Dollars ($30,000,000), or (b) on December 31 immediately following the twentieth anniversary of the issuance of all certificates of occupancy for the Initial Minimum Improvements, or (ii) on December 31, 2040. 12. Notices and Filings. The notices addresses for the Owner/Developer are hereby deleted, and the following inserted in their place. Kimco Marana L.P. 3535 Factoria Blvd., Suite 520 Bellevue, Washington 98006 Attn: Bill Brown with a copy to: Kimco Realty Corporation 3333 New Hyde Park Road New Hyde Park, New York 11042-0020 Attn: Legal Department 13. Anchor Tenant's Ability to Develop Anchor Tenant Parcel. The following is hereby added to the end of Section 2.7: "Any Anchor Tenant's rights under this Section 2.7 shall not be affected by the First Amendment to Marana Spectrum Development Agreement." 14. Exhibit "C." Exhibit "C" to the Agreement is hereby deleted in its entirety, and the Exhibit "C" and Exhibit "C-1"attached to this Amendment is inserted in its place. 15. Public Improvements. The definition of "Public Improvements" in Section 1.3.13 of the Agreement is hereby modified to be: "means the improvements described on Exhibit C and Exhibit C-1 attached to this Agreement (see paragraph 3.1 below)." 16. Town Construction. The following is hereby added to the end of Section 3.3 of the Agreement: "The Town has completed construction of the Public Improvements as set forth on Exhibit C-1." 17. Miscellaneous. The balance of the Agreement is hereby amended to reflect the purpose of this Amendment. The parties hereto acknowledge that except as expressly modified hereby, the Agreement remains unmodified and in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the Agreement, the terms of this Amendment shall control. Unless otherwise expressly defined herein, terms in this Amendment shall have the same meanings assigned to such terms in the Agreement. All exhibits attached hereto are incorporated herein. This Amendment may be executed simultaneously or in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. Regular Council Meeting -August 3, 2010 -Page 46 of 97 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures (the "Amendment Effective Date"). TOWN: THE TOWN OF MARANA, an Arizona municipal corporation OWNER/DEVELOPER: KIMCO MARANA L.P., a Delaware limited partnership By: Ed Honea, Mayor By: KD Marana 1553, Inc., a Delaware corporation, its general partner By: Attest: Its: Jocelyn Bronson, Clerk Approved as to form: Frank Cassidy, Town Attorney 4 Regular Council Meeting -August 3, 2010 -Page 47 of 97 STATE OF ) ss. COUNTY OF ) The foregoing First Amendment was acknowledged before me, a Notary Public, this day of 2010, by as of KD Marana 1553, Inc., a Delaware corporation, as general partner of Kimco Marana L.P., a Delaware limited partnership, who being authorized to do so, executed the foregoing First Amendment on behalf of said entity for the purposes stated therein. My Commission Expires: STATE OF ARIZONA ) ss. COUNTY OF PIMA ) Notary Public The foregoing First Amendment was acknowledged before me, a Notary Public, this day of , 2010, by Ed Honea, the Mayor of the Town of Marana, an Arizona municipal corporation, who being authorized to do so, executed the foregoing Agreement on behalf of the Town for the purposes stated therein. My Commission Expires: Notary Public 5 Regular Council Meeting -August 3, 2010 -Page 48 of 97 Exhibit C -Amended Scope of Work Marana Spectrum Drainage 1300 cfs Drainage Channel Excavation Gabion/Shot Crete Lining Landscaping Transition at Railway Drop Structures/Grade Control 800 cfs Drainage Channel Excavation Concrete Structural Lining 1,100 cfs Wash Enclosure 1100 cfs wash enclosure (con-arch or CSP equivalent to twin 5x7 box) 1100 cfs open channel d/s of Twin Peaks Utility Relocations d/s of Twin Peaks 1100 cfs Wash Culvert Road Building Bus Pullout Traffic Signals at Lee Driveway Traffic Signals at Twin Peaks mid-block Deceleration Lanes Water Supply/Fire Protection Fire Storage Tank (840,000 gallon) Land for Storage Tank New 12" parallel well feed from site to existing Town storage Tank New Well Feed on Twin Peaks (formerly Camino De Mariana) and Linda Vista (24" ductile iron) New Hydrants on Linda Vista and Twin Peaks PRV at Z-Zone Booster Station-Hartman Vista Reservoir Site Exhibit C Amended Page 1 of 2 Regular Council Meeting -August 3, 2010 -Page 49 of 97 Exhibit C -Amended Public Sewer Improvements Reconstruct public 10" to 12" Oasis Hills Outfall New public 8" sub-trunk to SE property corner per Pima County New public 15" sewer to south west property limits New steel sleeve at Twin Peaks Crossing New 15" public sewer crossing Twin Peaks to existing manhole Offsite Regional Trunk Sewer Improvements Summary of Public Improvements Marana Spectrum. 7/20/2010 Good Faith Estimate Item Total Developer Cost Drainage $6,580,000.00 Road Buildin $940,000.00 Water Supply/Fire Protection $1,901,281.00 Sewer Improvements $1,050,000.00 Total $10,471,281.00 Consulting 15% Contingency 10% See Exhibit C1 for public improvement costs constructed by the Town of Marana Exhibit C Amended Page 2 of 2 Regular Council- Meeting -August 3, 2010 -Page 50 of 97 Exhibit C1 Public Improvements Constructed by Marana Itenr,Np ''" ~ ltc~%Dwcription ,?~ k' Unit ".5 N Quant-ty e n Unt-t Pricc ~Amourit < 2030301 ROADWAY EXCAVATION CU.YD. 250 2 $500.00 2030901 BORROW CU.YD. 36690 6.7 $245,823.00 2090005 FURNISH WATER M.GAL. 8000 9 $72,000.00 3030022 AGGREGATE BASE, CLASS 2 CU.YD. 1269 21 $26,649.00 4010010 PORTLAND CEMENT CONCRETE PAVEMENT 10" SQ.YD. 4223 33 $139,359.00 4040111 BITUMINOUS TACK COAT TON 7 460 $3,220.00 4040116 APPLY BITUMINOUS TACK COAT HOUR 14 130 $1,820.00 4040282 ASPHALT BINDER (PG 76-16) TON 77 480 $36,960.00 4060006 ASPHALTIC CONCRETE (3!4" MIX) TON 1613 26 $41,938.00 4060026 MINERAL ADMIXTURE OR 3/4" MIX TON 16 90 $1440.00 4140040 ASPHALTIC CONCRETE FRICTION COURSE ASPHALT-RUBBER TON 233 35 $8,155A0 4140042 ASPHALT RUBBER MATERIAL (FOR AR- ACFC TON 19 530 $10,070.00 4140044 MINERAL ADMIXTURE OR AR-ACFC TON 2 90 $180.00 5019008. PIPE(30"xSTEEL)(SLEEVE) L.FT. 330 215 $70,950.00 7010003 MAINTENANCE AND PROTECTION OF TRAFFIC -10 42" SEWER SLEEVE L.SUM 1 10000 $10,000.00 7040070 PAVEMENT MARKING (WHITE THERMOPLASTIC XTRUDED 0.090" L.FT. 2268 0.25 $567.00 7040074 PAVEMENT SYMBOL (EXTRUDED THERMOPLASTIC ALKYD 0.090" EACH 6 100 $600.00 7060013 PAVEMENT MARKS RAISED TYPE C EACH 15 2.65 $39.75 7060018 PAVEMENT MARKS RAISED, TYPE G EACH 176 2.65 $466.40 7080301 PAINT BULL NOSE EACH 3 75 $225.00 7320070 ELECTRICAL CONDUIT (3") (PVC) L.FT. 2385 4.5 $10,732.50 7320090 ELECTRICAL CONDUIT (4") (PVC) L.FT. 2986 8 $23,888.00 7320440 PULL BOX (NO. S) (C.O.T. & P.C. STD DETAIL T.S. 1-2 EACH 2 450 $900.00 7320450 PULL BOX (N0.7) (C.O.T. & P.C. STD DETAIL T.S. 1-4 EACH 2 600 .$1,200.00 7320451 PULL BOX (N0.7) (WITH EXTENSION) C.O.T. & P.C. STD DETAIL T.S. 1-5 EACH 8 700 $5,600.00 8080285 PIPE (PVC) (6") (SCHEDULE 40) L.FT. 3585 4.2 $15,057.00 8081242 PIPE, STEEL (42") L.FT. 754 365 $275,210.00 9080401 CONCRETE HEADER L.FT. 14 10 $140.00 9140155 RETAINING WALL (MSS) SQ.FT. 1340 37 $49,580.00 9210012 MEDIAN PAVING CONCRETE PAVERS S .YD. 235 57 $13,395.00 ROADWAY TOTAL $i 066 664.65 Exhibit C1 Regular Council Meeting -August 3, 2010 -Page 51 of 97 page 1 of 4 Exhibit C1 Public Improvements Constructed by Marana iteru'No : Ite 'on "~'' } '• ' U'nit ~` e, Quanttty3 U,itrt Pace ~~ount^ Bridge F - I-10/TWIN PEAKS ROAD TI UNDERPASS 6011371F APPROACH SLAB (SD 2.01) SQ.FT. 720 16 $11,520.00 6011372F ANCHOR SLAB (TYPE 1) (SD 2.02) SQ.FT. 1080 13 $14,040.00 9999912A LUMP SUM ride S .FT. 5232 123.32 $645,210.24 9999903F LUMP SUM STRUCTURE (TOTAL OF PRECEEDING STRUCTURE ITEMS $670,770.24 Bridge H -TWIN PEAKS ROAD -UPRR OVERPASS 6011371H APPROACH SLAB (SD 2.01) SQ.FT. 720 16 $11,520.00 6011372H ANCHOR SLAB (TYPE 1) (SD 2.02) SQ.FT. 720 13 $9,360.00 9999912A LUMP SUM (Bridge) SQ.FT. 5418 164.52 $891,369.36 9999903H LUMP SUM STRUCTURE (TOTAL OF PRECEEDING STRUCTURE ITEMS $912,249.36 BRIDGE STRUCTURE TOTAL = $1 583 019.60 YL1~lLti Box Culvert R -TWIN PEAKS Sta 111+62 d ,. F - H~.b2 -.~~~~~~.T1T.',. . 2030501R STRUCTURAL EXCAVATION CU.YD. 5020 5 $25,100.00 2030506R STRUCTURE BACKFILL CU.YD. 1585 21 $33,285.00 6010002R STRUCTURAL CONCRETE (CLASS S) C=3 000 PS CU.YD. 772 190 $146,680.00 6050002R REINFORCING STEEL LB 112350 0.6 $67,410.00 9999903R LUMP SUM STRUCTURE (TOTAL OF PRECEEDING STRUCTURE ITEMS $272,475.00 DRAINAGE BOX CULVERT TOTAL = $272 475.00 Exhibit C1 Regular Council Meeting -August 3, 2010 -Page 52 of 97 .Page 2 Of 4 Exhibit C1 Public Improvements Constructed by Marana V~r""I~II~H 1~ wti~.~~) TOWN OF MARl1f1A Camino Re Manana 16" Z-Zone Water Main Linda Ysta Boulevard to Tangerine Road Town of Marana Project No. 2010-300-005 0 WATER GMP.ESTIMATE' #2 PROJECr:HO.e 30'f0.100~005 NAME: CAMINO DE MAFIANA.1 DOPE MOUNTAIN BOtA.EA/ARO EXTENSION WATER LINE ANp BOOSTER Sl'ATiONS CONTRACTOR: BORDERLAND CONSTRUCTION COMPANY, INC, CAMINO DE MANAMA - 76" Z,ZONE. WATER MAIN IMARANA SPEGTRl1M! M NO ~~ .. QESCRIPiION. , QTY - UM' ' ~ UNIT810- TOTAL 610 1 32" STEEL CASING (.375 WALL 95 LF $150:89 : $14,334.5.5 2 32" STEEL CAST G .375- A )( 7N EXTENSIO 260. $124,12 $32,271.:20. 3. 1&" CL 250 DIP WATER. 7,732 LF $G693 $517,502,76. 4 16" BUTTERFLY VAL1(E _ _. i1 EACH ' $3,474:87 $38.223.:57. 5 12" C~.-350 DIP WATERMAIN AT ES RT ALCON 240 CF $8081` $19,394.44: 6' 12" GATE VALVE'(INCLUDINGS7UBS): 1 EACH $2,457.80- $2,457:SU s 7 8" CL-35Q OIP VVATERMAIIN 494: LF $49:8.9 $24,645:66 8 $".GATE VALVE 7 EACH $1,459:68 $10,217.76- 9 2" CO BINATION:AIR: RELEASE VALVE 2 EACH $2,684,60 $5,365120.; 10 2" DRAIN VALVE ASSEMBL 6, EACH $1,276;60 $7,659.60- .11 : CORROSION TEST STATION 6 EACH $672:21 $4,033:26 12 : JOINT BONDING 439 EACH $60:65 $26,625.35 73. . CORROSION REPORT 1 EACH $3,000,00: $3,000.00- - . 14 _ CONNECT T~ EXISTING 1 EACH $2,Q57.80 $2;057.80 15, . , CLEAR R. tGHT-OF-WAY 1 ACRE, $2.530:(Hl $1,265:OU i6' SURVEY 1 LS $16,400:00 $16,400 Q0 17 . TESTING' 1 LS $12,765:00 '$12,765.00 18 BOND i LS $6.031:51. $6;031.51 19 SALES TAX 1 LS $63,593.55 $.63,593;55. 20 GENERAL JOB EXPENSE &. COMPANY OVERHEAD. 1 LS $'158;333:17 $0,00, COMPANY OVERHEAD ., i' LS $75,145.17 : $75,145.17 CONSTRUCTION WATER' 1 LS $4,800.00 $%3,800.00 . CLEAN UP fr LS $950.00: $950:00. MOBIU7JCTION, 40 HR $154.70 $6,!88,00. P.ORTA@LE TOILET 8 MO $100.00 $750:00 SURERVISL,ON 30 VNK $2;350:00 : $70,500:00 2i CONTRAC OR$ FEE. 1 LS $86,370:93 $66,370.93 22 OWNERS CONT3NGENCY=S°h 1 LS $57;827.40 $51,627.40 TOTAL-16" Z,ZONE ATER MAIN 1..084,175.47 Exhibit C1 Regular Council Meeting -August 3, 2010 -Page 53 of 97 Page 3 of 4 Exhibit C1 Public Improvements Constructed by Marana - Itc m`,~I"o ~ - esc,t~~r;~ ~ ` ~~ ,~ ~3~f t,-' Gait ~, °- Ua~t~Price ` - ,1 ~.:,~Amt'~~ ROADWAY, BRIDGE STRUCTURE AND $2,922,159.25 DRAINAGE BOX CULVERT TOTAL = 9240170 CONTRACTOR QUALITY CONTROL (1%) L.SUM 1 29221.5925 $29,221.59 9250001 CONSTRUCTION SURVEYING AND L.SUM 1 58443.185 $58,443.19 LAYOUT 2% CONSTRUCTION ENGINEERING 9% Cost $262 994.33 BITUMINOUS MATERIAL (LIQUID ASPHALT) ESCALATION PROVISIONS Cost $58,443.19 2% FUEL ESCALATION ADJUSTMENT (0.2%) Cost $5,844.32 OTHER PROJECT COSTS TOTAL = $414,946.61 TOTAL COST ATTRIBUTABLE TO $3,337,105.86 CONSTRUCTION = DESIGN COSTS TO INCORPORATE $20,000.00 CHANGES = TOTAL COST -TWIN PEAKS $3,357,105.86 INTERCHANGE PROJECT = 2" ~ ~ ~ ~t ,, s vy ~ _, =t w . CAMINO DE MANANA GMP CHANGE ORDER FROM $1,084,175.47 BORDERLAND FOR 16" WATER MAIN = WATER LINE DESIGN BY WESTLAND RESOURCES $9,000.00 CONSTRUCTION INSPECTION AND AS-BUILTING BY $17,000.00 WESTLAND RESOURCES TOTAL COST - CAMINO DE MANANA PROJECT = $1,110,175 47 TOTAL PUBLIC IlVIPROVEMENT COSTS -TOWN OF MARANA = $4,467,281.33 Exhibit C1 Regular Council Meeting -August 3, 2010 -Page 54 of 97 page 4 of 4 FIRST AMENDMENT TO MARANA SPECTRUM DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA This First Amendment to Marana Spectrum Development Agreement (this "Amendment") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and KIMCO MARANA L.P., a Delaware limited partnership, formerly known as Kimco Barclay Marana, L.P. (the "Owner/Developer"). The Town and the Owner/Developer are collectively referred to in this Agreement as the "Parties," and each is sometimes individually referred to as a "Party." RECITALS A. Owner/Developer and the Town are parties to that certain Marana Spectrum Development Agreement, dated December 22, 2007, a copy of which was recorded at Docket 13211, Page 951, in the records of Pima County, Arizona, on December 28, 2007 (the "Agreement"). B. The Town adopted the Agreement by Marana Resolution No. 2007-229, dated December 18, 2007 (the "Resolution"). C. Pursuant to that certain Assignment of Partnership Interest in Kimco Barclay Marana, L.P. (the Assignment"), Barclay Holdings XLVIII, LLC, an Arizona limited liability company ("Barclay") assigned to Kimco Developers, Inc., a Delaware corporation ("Kimco") all of Barclays right, title and interest in and to Owner/Developer. The Amendment evidencing the Assignment was filed with the Arizona Secretary of State on September 18, 2009, as File No. 3007118. D. The Parties now desire to amend the Agreement in accordance with the terms and conditions set forth below. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises made in this Amendment, the Parties agree as follows. . 1. Incorporation of the Recitals. The foregoing Recitals are incorporated herein by this reference. 2_ Interest Pa_ra~r~nh 1 ~ 10 of the Ag_er moment is amended by renlacin,g "at the rate of 6 5% pcr altn~.l~' wi~tla~ "at th~.ratc Qf~% per an.II.~.1C17t„ Regular Council Meeting -August 3, 2010 -Page 55 of 97 3. ~;--Initial Development Plan. The following words are hereby deleted from Section 2.3 of the Agreement: "within 36 months of the date the Interchange is completed by the Arizona Department of Transportation and first open for vehicular traffic and use by the general public" ."_ 4. ~-Minimum Construction Obligation. Section 2.4 of the Agreement is hereby deleted. 5. 4--Public Improvements Construction and Reimbursement. Section 3.1.2 of the Agreement is hereby deleted, and the following is inserted in its place. 3.1.2 Reimburse the Town $4,467,281.33, which is the Public. Improvement Costs for the Public Improvements which have now been completed by the Town, as detailed on Exhibit C1 (attached to this Amendment), which reimbursement shall occur within sixty (60) days following the opening of the Interchange for vehicular traffic and use by the general public. 6. ~ Reimbursement Amount. The first line of Section 6.1.2 of the Agreement is hereby deleted, and the following is inserted in its place: "From and after the issuance of certificates of occupancy for the Initial Minimum Improvements," Z,, 6: Reimbursement Account. Section 6.2.1 of the Agreement is hereby deleted, and the following inserted in its place. 6.2.1. The expiration of this Agreement, as described in Section 8.1 as modified by this Amendrent. 8,., 7: Other Impact Fees. The words "the ninth anniversary of the Effective Date of this Agreement" are hereby deleted from the last line of Section 5.2 of the Agreement, and the following are inserted in their place: "the ninth anniversary of the "Amendment Effective Date" as defined below in this Amendment." 9. 8: Development Regulations. The words "for a period of five years from Effective Date of this Agreement" shall be deleted from the fifth sentence of Section 2.1 of the Agreement, and the following is inserted in their place: "until the expiration of this Agreement." In addition, the penultimate sentence of Section 2.1 of the Agreement is hereby deleted, and the following is inserted in its place: "The immediately preceding sentence shall terminate on the expiration of this Agreement." 10. 9: Owner/Developer's Environmental Mitigation Contribution. The following is hereby added to the conclusion of Article 4 of the Agreement: "Owner/Developer shall make such payment concurrently with the issuance of certificates of occupancy for all the Initial Minimum Improvements." 11,., ~1-0: Term. The second sentence of Section 8.1 of the Agreement is hereby deleted, and the following inserted in its place. 2 Regular Council Meeting -August 3, 2010 -Page 56 of 97 The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the earliest of the following: (a) when the total amount of all Reimbursement Payments (see Section 6.4 above) equals Thirty Million Dollars ($30,000,000), or (b) on December 31 immediately following the twentieth anniversary of the issuance of all certificates of occupancy for the Initial Minimum Improvements, or (ii) on December 31, 2040. 12., ~1-1: Notices and Filings. The notices addresses for the Owner/Developer are hereby deleted, and the following inserted in their place. Kimco Marana L.P. 3535 Factoria Blvd., Suite 520 Bellevue, Washington 98006 Attn: Bill Brown with a copy to: Kimco Realty Corporation 3333 New Hyde Park Road New Hyde Park, New York 11042-0020 Attn: Legal Department 13, ~ Anchor Tenant's Ability to Develop Anchor Tenant Parcel. The following is hereby added to the end of Section 2.7: "Any Anchor Tenant's rights under this Section 2.7 shall not be affected by the First Amendment to Marana Spectrum Development Agreement." 14. Exhibit "C." Exhibit "C" to the Agreement is hereby deleted in its entirety, and the Exhibit "C" and Exhibit "C-1"attached to this Amendment is inserted in its place. 15_, ~4: Public Improvements. The definition of "Public Improvements" in Section 1.3.13 of the Agreement is hereby modified to be: "means the improvements described on Exhibit C and Exhibit C-1 attached to this Agreement (see paragraph 3.1 below)." 16_ ~ Town Construction. The following is hereby added to the end of Section 3.3 of the Agreement: "The Town has completed construction of the Public Improvements as set forth on Exhibit C-1." 1Z. ~: Miscellaneous. The balance of the Agreement is hereby amended to reflect the purpose of this .Amendment. The parties hereto acknowledge that except as expressly modified hereby, the Agreement remains unmodified and in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the Agreement, the terms of this Amendment shall control. Unless otherwise expressly defined herein, terms in this Amendment shall have the same meanings assigned to such terms in the Agreement. All exhibits attached hereto are incorporated herein. This Amendment may be executed simultaneously or in counterparts, each of which shall be ~_ Regular Council Meeting -August 3, 2010 -Page 57 of 97 deemed. an original, but all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures (the "Amendment Effective Date"). TOWN: THE TOWN OF MARANA, an Arizona municipal corporation By: ---- Ed Honea, Mayor OWNER/DEVELOPER: KIMCO MARANA L.P., a Delaware limited partnership By: KD Marana 1553, Inc., a Delaware corporation, its general partner By: Attest: Jocelyn Bronson, Clerk Approved as to form: Frank Cassidy, Town Attorney Its: 4 Regular Council Meeting -August 3, 2010 -Page 58 of 97 STATE OF ) ss. COUNTY OF ) The foregoing First Amendment was acknowledged before me, a Notary Public, this day of 2010, by as of KD Marana 1553, Inc., a Delaware corporation, as general partner of Kimco Marana L.P., a Delaware limited partnership, who being authorized to do so, executed the foregoing First Amendment on behalf of said entity for the purposes stated therein. My Commission Expires: Notary Public STATE OF ARIZONA ss. COUNTY OF PIMA The foregoing First Amendment was acknowledged before me, a Notary Public, this - -- day of 2010, by --_.___________..______ d_ }vel~+Ed Honea. the Maw of the Town of Marana, ukti~aY~~nbdFan-of~e-~ta~°- efa~t Arizona municipal corporation, who being authorized to do so, executed the foregoing Agreement on behalf of the Town for the purposes stated therein. My Commission Expires: Notary Public _~ Regular Council Meeting -August 3, 2010 -Page. 59 of 97 Document comparison by Workshare Professional on Thursday, July 29, 2010 10:08:55 AM Input: Document 1 ID file://C:/Documents and Settings/fcassidy/My Documents/First Amendment 6 July 2010.doc Description First Amendment 6 July 2010 Document 2 ID file://X:/WDOX/TNATDOCS/DEVELOP/MARSPEC/000223 62. DOC Description 00022362 Rendering set standard Legend: Format change Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 9 Deletions 21 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 30 Regular Council Meeting -August 3, 2010 -Page 60 of 97 F. ANN RODRIGUEZ, RECORDER DOCKET: 13211 RECORDED BY: C V oe PItyf PAGE: 951 DEPUTY RECORDER 016 PE3 ~ '7 O 'w O ' NO. OF PAGES: SEQUENCE: 30 20072500263 MARA ~ ~~~x 12/28/2007 S TOWN OF MARANA '~. _ ~ »~II ~] `~~ ~'`~ RES 14:43 ATTN: TOWN CLERK ~ '9jtIZ0114' 11555 W CIVIC CENTER DR MP+IL MARANA AZ 85653 AMOUNT PAID $ 20.50 MARANA RESOLUTION N0.2007-229 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF A RETAIL DEVELOPMENT .TAX INCENTIVE AGREEMENT REGARDING THB MARANA SPECTRUM DEVELOPMENT PROJECT. WHEREAS A.R.S. § 9-500.11 authorizes the Town to enter into a retail development tax incentive agreement under certain circumstances; and WHEREAS the Mayor and Cou_ Heil; find that the proposed tax incentive to be approved by this resolution is anticipated to raise more revenue than the amount of the incentive within the duration of the agreement; and WHEREAS the Mayor and Council find that in the absence of a tax incentive, the Marana Spectrum Development Project would not locate in the Town of Marana in the same time, place or manner as it is agreeing to do under the terms of the Marana Spectrum Development Agreement; and WHEREAS the Town's fmding that the proposed tax incentive is anticipated to raise more revenue than the amount of the incentive within the duration of the Mazana Spectrum Development Agreement has been verified by an independent third party; and WHEREAS on December 4, 2007, the Town adopted a notice of intent to enter into the Mazana Spectrum Development Agreement, as required by A.R.S. § 9-500.11(K); and WHEREAS the Mayor and Council find the terms and conditions of the Mazana Spectrum Development Agreement aze in the best interest of the Town. NOW, THEREFORE, BE TT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Mazana Spectrum Development Agreement is hereby approved. _~ ,~ SECTION 2. The Mayor is hereby authorized and directed to execute, -and the Town Clerk is hereby authorized and directed to attest to, the Mazana Spectrum Development Agreement attached to and incorporated by this reference in this Resolution as Exhibit A, for and on behalf of the Town of Mazana. ]. {0ooo7oi7.DOC i} Regular Council Meeting -August 3, 2010 -Page 61 of 97 - 1 - 12/4/07 FJC ~LJ SECTION 3. 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 COUNC OF THE TOWN OF y-~• ,,, i°= ~0a~ rF =~' ATTEST: ! ~~•`~ ~ APPRO D S T FORM: ~~G'~ Town Clerk ~; foooo~atznoci} Regular Council Meeting -August 3, 2010 -Page 62 of 97 - 2 MARANA, ARIZONA, this 18`~ day of December, 2007. .~ ~:', ~ ' #~ O~~ of ~~~~i `^ ~ ~ ~ ~~~ ~~ l~~~p+n-np, ~i Mayor E Honea 'Town 12/4/07 FJC MARANA SPECTRi7M DEVELOPMENT AGREEMENT TOWN OF INIARANA, ARIZONA This Development Agreement (this "Agreement") is entered into by and between the TowN OF MARANA, an Arizona municipal corporation (the "Town") and KIMCO BARCLAY MARANA, L.P., a Delaware limited partnership (the "Owner/Developer"). The Town and the Owner/Developer are collectively referred to in this Agreement as the "Parties," and each is sometimes individually referred to as a "Party." RECITALS A. Owner/Developer was formed and exists for the purposes of owning and developing approximately 170 acres of real property located within the corporate limits of the Town (the "Property") B. Owner/Developer intends and desires to develop a regional lifestyle/entertainment/power retail shopping center on the Property containing approximately 1,200,000 square feet (the "Development"). C. The Property and the proposed Development were included in and subject to the provisions of the Marana Spectrum Specific Plan (the "Marana Spectrum Plan"), approved by the Town on August 7, 2007 pursuant to Ordinance No. 2007.19. D. The Property is legally described in Exhibit A attached to this Agreement. E. The Town and Owner/Developer desire to establish certain agreements regarding the Development pursuant to A.R.S. § 9-500.05 and certain agreements in connection with development activities for the economic benefit of the Town pursuant to A.R.S. § 9-500.11 upon and in accordance with the terms and conditions set forth in this Agreement. F. The Development is consistent with the Town's long-term economic development strategies and is expected to create a source of significant tax revenue for the Town for many years. G. The Development will have a substantial positive economic impact on the Town because it is expected to provide diverse commercial and retail service opportunities consistent with the businesses targeted by the Town. The facilities to be constructed as part of the Development are expected to produce a significant number of new jobs and generate substantial sales tax revenues. Consequently, the short-term and long-term benefits of the Development will offset and significantly outweigh the costs of the reimbursements provided by the Town under this Agreement. H. The Development will provide significant intangible benefits to the Town as a retail lifestyle/entertainment/power center and may also include mixed use, hotel, office and residential 1 components. {000060n.DOC / 4} 12/1 8/2007 8:47PM MARANA SPECTRUM DEVELAPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 63 of 97 - 1 - I. The Development is in compliance with the Town's adopted and approved General Flan (as defined in A.R.S. § 9-461). J. The Town is authorized by A.R.S. § 9-500.05 to enter into a development agreement with a landowner or other person or entity having an interest in real property located within the Town to facilitate development,of the property by providing for, among other things, the conditions, terms, restrictions, and requirements for development and public infrastructure and the financing of public infrastructure. Because of its location and typography, the Development will entail significant atypical additional offsite and site costs requiring reimbursement for feasible development. K. In approving this Agreement, the Town Council has found and determined that certain activities relating to the Development are economic development activities within the meaning of A.R.S. § 9-500.11, that all expenditures by the Town pursuant to this Agreement constitute the appropriation and expenditure of public monies for and in connection with economic development activities and that it is appropriate to provide Owner/Developer with the reimbursement in this Agreement as an inducement to cause Owner/Developer to construct, own and operate the Development in the Town. L. The Town adopted a notice of intent to enter into this Agreement not less than 14 days before the Town Council approved this Agreement, in compliance with A.R.S. § 9-500.11. M. The Town Council finds that the Development will raise more revenue for the Town than. the amount of the reimbursements to the Owner/Developer within the duration of this Agreement. N. An independent third party not financed by the Owner/Developer has verified the Town Council's finding that the Development will raise more revenue for the Town than the amount of the reimbursements to the Owner/Developer within the duration of this Agreement. O. The Town Council finds that in the absence of the reimbursements to the Owner/Developer provided pursuant to this Agreement, the Development would not locate in the Town in the same time, place or manner as it will with the reimbursements to the Owner/Developer. P. The Owner/Developer will incur out-of-pocket public infrastructure construction costs and will make certain contributions for public infrastructure and .environmental mitigation in the immediate vicinity of and directly benefiting the Development. Q. The reimbursements to the Owner/Developer provided pursuant to this Agreement are intended to reimburse the Owner/Developer for its out-of-pocket public infrastructure construction costs and public infrastructure and environmental mitigation contributions and I related interest and carrying costs, as described more specifically in this Agreement. AGREEMENT ~ Now, THEREFORE, in consideration of the mutual promises made in this Agreement, the Parties agree as follows: Article 1. Background x'' w~ 1.1. Incorporation of the Recitals. The foregoing Recitals are incorporated here by this reference. {00006071.IXx / 4} 12/18/2007 8:47 PM MAItANA SPECTRUM DEVELOPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 64 of 97 - 2 - 1.2. Proposed Uses. The Development is a retail center planned to accommodate a range of differing but complementary retail-related land uses on an integrated and master-planned basis. Typical uses envisioned in the center include destination and major anchor retailers not otherwise found or clustered in the Town, lifestyle and other retail shops, restaurants, entertainment facilities, national electronic and other hard goods retailing, financial institutions and other service businesses, landscaping, and distinctive common areas. The Development may also include mixed use, hotel, office and residential components. Overall, the Development, which will have a unique regional draw, will create substantial additional sales tax revenues for the Town, will assist in the creation or retention of jabs and will otherwise improve or enhance the economic welfare of the residents of the Town by bringing customers to the Development from the Town and surrounding communities. Exhibit B attached to this Agreement is a conceptual description of the master site plan for the Development. This master site plan will be updated in accordance with paragraph 2.3.2 below. 1.3. Definitions. The following definitions shall apply to this Agreement: 1.3.1. "Anchor Tenant" means a retailer occupying more than 80,000 square feet of building area. 1.3.2. "Anchor Tenant Parcel" means any parcel in the Development owned, leased or operated by an Anchor Tenant. 1.3.3. "Construction Sales Tax Revenues" mean those portions of the Town's transaction privilege taxes (currently 4%) generated pursuant to Section 8-415 or 8-416 of the Marana Tax Code from construction contracting or speculative builder activities occurring on the Property. 1.3.4. "Developer Parcel" means any portion of the Property other than the Anchor Tenant Parcels. 1.3.5. The "Development" is defined in recital B above and described in Exhibit B and in paragraph 1.2 above. 1.3.6. "Development Regulations" is defined in paragraph 2.1 below. 1.3.7. "Initial Development Plan" is defined in paragraph 2.3.1 below. 1.3.8. "Initial Minimum Improvements" is defined in paragraph 2.3.1 below. 1.3.9. "Interchange" means the currently planned freeway bridge and related ramps commonly referred to as the "Twin Peaks TI," consisting of the approaches and interchange system at approximately milepost 245 of Interstate 10, connecting Interstate 10 to Camino de Mariana adjacent to the Property. 1.3.10. "Interest" or "Interest Rate" means interest on the applicable obligation or sum (including the Total Reimbursement Amount) at the rate of 6.5% per annum, compounded quarterly on the first day of each calendar quarter. 1.3.11. The "Marana Spectrum Plan" is the Marana Spectrum Specific Plan, approved by the Town on August 7, 2007 pursuant to Ordinance No. 2007.19 (see recital C above). 1.3.12. The "Property" is defined in recital A above and described in Exhibit A attached to this Agreement. {00006071.DOC / 4) 12/18/20078:47 PM MARANA SPECTRUM DEVELAPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 65 of 97 - 3 - 1..3.13. "Public Improvements" means the improvements described on Exhibit C attached to this Agreement (see paragraph 3.1 below). 1.3.14. "Public Improvement Costs" means all costs, expenses, fees and charges actually incurred and paid by or on behalf of Owner/Developer to contractors, architects, engineers, surveyors, governmental agencies, other professionals and consultants, and other third parties for materials, labor, planning, design, engineering, surveying, site excavation and preparation, governmental permits and payments, payment and performance bonds, other professional services, and all other costs and expenses related or incidental to and reasonably necessary for, the acquisition, improvement, construction, installation, or provision of the Public Improvements, together with all costs associated with the acquisition of lands, rights- of-way and easements either to be dedicated to the Town or upon which Public Improvements are to be constructed, with Interest as provided in this Agreement. 1.3.15. "Reimbursement Account" means a separate account within the Town's General Fund or accounted for by an appropriate book or ledger entry designation for the purpose of making Reimbursement Payments (see paragraph 6.2 below) 1.3.16. "Reimbursement Payments" is defined in paragraph 6.4 below. 1.3.17. "Sales Tax Revenues" means that portion of the Town's transaction privilege taxes (currently 2%) generated from the following activities occurring on the Property: 1.3.17.1. Amusements, exhibitions and similar activities pursuant to Section 8-410 of the Marana Tax Code. 1.3.17.2. Hotels pursuant to Section 8-444 of the Marana Tax Code. 1.3.17.3. Rentals pursuant to Section 8-445 of the Marana Tax Code. 1.3.17.4. Restaurants and bars pursuant to Section 8-455 of the Marana Tax Code. 1.3.17.5. Retail sales pursuant to Section 8-460 of the Marana Tax Code. References to sections of the existing Marana Tax Code shall include corresponding sections of successor codes. 1.3.18. The "Total Reimbursement Amount" is defined in paragraph 6.1.1 below. Article 2. Development of the Property. 2.1. Development Regulations. The development of the Property shall be governed by the underlying zoning or land use designation and the standards provided for in the Marana Spectrum Plan, including the Owner/Developer's design and development standards and guidelines, as clarified and supplemented by this Agreement. The Marana Development Code, :~ including the written rules, regulations, substantive procedures, and policies relating to development of land, adopted or approved by the Mayor and Council (collectively the "Marana ~ Development Code") in effect on the effective date of the Marana Spectrum Plan shall apply to '` the extent not covered by the Marana Spectrum Plan or this Agreement. In the event of any express conflict, the terms of this Agreement and the Marana Spectrum Plan shall control over a the Marana Development Code.. For purposes of this Agreement, the underlying zoning or land use designation shall mean full development, exclusive of voluntary limitations or restrictions, under the controlling underlying zoning or land use designation included in the Marana Spectrum Plan, and if not so covered, under the Marana Development Code. All signage and {00006071.DOC / 4} 12/18/20078:47PM MARANA SPECTR[IM DEVELOPMENT AGREEMENT Regular Council Meeting -August 3, 2010 - Page. 66 of 97 - 4 - lighting standards shall be governed exclusively by the Marana Spectrum Plan for a period of five years from the Effective Date of this Agreement. Anything else in this Agreement to the contrary notwithstanding, the Town shall not apply any ordinances. enacted after the Effective Date of this Agreement which impose special limitations or restrictions on the development of single user retail facilities in excess of a certain size limitation (such as 100,000 square feet or more of retail space) for retail facilities on the Property. The immediately preceding sentence shall terminate on the tenth anniversary of the Effective Date of this Agreement. The requirements of this paragraph are collectively referred to as the "Development Regulations." 2.2. Development Review. The Property shall be developed in a manner consistent with the Development Regulations and this Agreement, which together establish the basic land uses, and the densities, intensities and development regulations that apply to the land uses authorized for the Property. Upon the Owner/Developer's compliance with the applicable development review and approval procedures and substantive requirements of the Development Regulations, the Town agrees to issue such permits or approvals for the Development as may be requested by the Owner/Developer. 2.3. Initial Development Plan. As a condition precedent to the Owner/Developer's right to receive and the Town's obligation to make Reimbursement Payments under Article 6 of this Agreement, and not as a separate obligation, within 36 months of the date the Interchange is completed by the Arizona Department of Transportation and first open for vehicular traffic and use by the general public, the Owner/Developer shall prepare and submit to the Town the following: 2.3.1. A development plan (the "Initial Development Plan") for the initial construction of the Development, consisting of at Least 120,000 square feet of retail building space and related parking, supporting infrastructure and amenities (the "Initial Minimum Improvements"). 2.3.2. An updated revised conceptual master site plan far the entire Development. 2.4. Minimum Construction Obli ag rion. As a condition precedent to the Owner/Developer's right to receive and the Town's obligation to make Reimbursement Payments under Article 6 of this Agreement, and not as a separate contractual obligation, the Owner/Developer shall obtain building permits for and begin construction of the Initial Minimum Improvements in a manner consistent with the Initial Development Plan within twelve months after the later of (i) the Town's approval of the Initial Development Plan or (ii) the Interchange is completed by the Arizona Department of Transportation and first open for vehicular traffic and use by the general public. 2.5. Cooperation. The Parties shall cooperate and share information and plans for the 1, construction of the Interchange and the construction of the Development, to assure coordination between the Interchange construction and the development of the Development. This coordination and information sharing shall include, without limitation, the Interchange height, scope, ramps and curb cuts. 2.6. Abandonment Proceedings. The Town agrees to timely begin and diligently pursue abandonment proceedings pursuant to A.R.S. § 28-7201 et seq. to abandon the existing Linda '~' Vista Road right-of--way to the extent it is located within the Development to the new alignment shown on the development plans for the Development. Owner/Developer acknowledges the {OOOOti071.DOC / 4) 12/18/20078:47 PM MARANA SPECTRUM DEVELOPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 67 of 97 - 5 - Town's obligation to proceed as required by law, including the need to address any rights of property owners and utility companies that rely on the right-of--way sought to be abandoned, and the Parties will cooperate in good faith to address those rights justly and appropriately while working toward the goal of full abandonment through the Property. 2.7. Anchor Tenant's Ability to Dever Anchor Tenant Parcel. Any Anchor Tenant may develop its Anchor Tenant Parcel independently of the development of the Developer Parcel and any other Anchor Tenant Parcel. So long as it complies with applicable Town requirements any Anchor Tenant shall be entitled to receive a building permit and certificate of occupancy for the improvements to be constructed on its Anchor Tenant Parcel, whether or not Owner/Developer shall have developed the Developer Parcel in accordance with this Agreement; provided, however, that an Anchor Tenant's right to a certificate of occupancy shall be expressly conditioned upon such Anchor Tenant's submission to and approval by the Town of a development plan consistent with the Development Regulations and completion of: (i) the building to be located on the Anchor Tenant Parcel; (ii) all other necessary improvements to the Anchor Tenant Parcel; (iii) all drives, utilities and entrances serving the improvements on Anchor Tenant Parcel; (iv) applicable amounts of perimeter sidewalks for the Development that serve the Anchor Tenant Parcel; (v) applicable amounts of appurtenant landscaping for entrances and drives located on the Developer Parcel but serving Anchor Tenant Parcel; and (vi) offsite improvements serving the Anchor Tenant Parcel set forth on the approved development plan for the Anchor Tenant Parcel and provided further that the Town's standard bonding obligations shall be enforced with respect to Anchor Tenant's completion of (i) through (vi) above. Further in the event Owner/Developer is not performing under this Agreement with reference to any obligations or improvements referenced in subparts (ii) through (vi) above, Anchor Tenant shall have the right to cure such non-performance for a period of six months from the date of the Town's written non-performance notice to Owner/Developer in accordance with paragraph 7.2 below. Article 3. Owner/Developer's Contributions for Public Improvements 3.1. Public Improvements Construction and Reimbursement. As a condition precedent to receiving Reimbursement Payments under Article 6 of this Agreement, and not as a separate contractual obligation, the Owner/Developer shall, in conjunction with its construction of the Development and in accordance .with the State of Arizona and the Town public infrastructure construction procurement laws and procedures: 3.1.1. Design and construct the Public Improvements described in Exhibit C attached to this Agreement which are identified as being constructed by the Owner/Developer; and 3.1.2. Reimburse the Town, within sixty days of completion and written demand by the Town, all costs of the Public Improvements described in Exhibit C attached to this Agreement which are identified as being constructed by the Town; and 3.1.3. Pay all Public Improvement Costs as they become due. 3.2. Town Review and Approval of Plans. Except as expressly provided in this Agreement, the development and construction of the Public Improvements is subject to the Town's normal plan submittal, review and approval procedures and construction inspection requirements. 3.3. Town Construction. The Town shall timely construct all. Public Improvements identified as being constructed by the Town as set forth in Exhibit C to this Agreement. {00006071.DOC / 4) MARANA SPECTRUM DEVELOPMENT AGREEMENT 12/18/20078:47 PM Regular Council Meeting -August 3, 2010 -Page 68 of 97 - 6 - Article 4. Owner/Developer's Environmental Mitigation Contribution As a condition precedent to receiving' Reimbursement Payments under Article 6 of this Agreement, and not as a separate contractual obligation, the Owner/Developer shall make a cash contribution of $456,000 to the Town to be used for acquisition of environmentally sensitive lands for the preservation of species native to the general area of the Development. Article 5. Owner/Developer's Payment of Development Impact Fees 5.1. Water Impact Fees. The only Town development impact fees adopted by the Town pursuant to A.R.S. § 9-463.05 and currently applicable to the Development are the Gravity Storage and Renewable Water Resource Fee and the Water System Infrastructure Impact Fee, adopted by Marana Ordinance No. 2005.25. 5.2. Other Impact Fees. Except as specifically provided in the first sentence of paragraph 5.1 above, no surcharge, development fees or impact fees, exactions or impositions of any kind whatsoever- for water, sewer, utilities, streets or other transportation systems, parks, preserves, storm sewers, flood control, public safety or other public services or any other infrastructure cost or expense shall be chargeable to the Owner/Developer or to any owner, lessee or occupant of the Development until the ninth anniversary of the Effective Date of this Agreement. Article 6. Town Reimbursement to Owner/Developer 6.1. Reimbursement Amount. The Town shall make Reimbursement Payments to the Owner/Developer for: 6.1.1. The Owner/Developer's Public Improvement Costs and reimbursements to the Town for the Public Improvements (see Article 3 and paragraph 1.3.14 above) (collectively, the "Total Reimbursement Amount"). 6.1.2. From and after the commencement of construction of the Public Improvements, Interest shall accrue on any unreimbursed portion of the Total Reimbursement Amount at the Interest Rate. This accrued interest on the Total Reimbursement Amount shall be a portion of the Reimbursement Payments in paragraph 6.4 below. The Owner/Developer shall submit to the Town a quarterly statement showing the actual construction costs incurred and contributions paid to date for the Public Improvements. The OwnertDeveloper shall provide the Town with invoices or other backup information reasonably requested by the Town to confirm the accuracy of the OwnerlDeveloper's quarterly statement of costs and contributions. 6.2. Reimbursement Account. The Town shall deposit into the Reimbursement Account 45% of the Sales Tax Revenues (see paragraph 1.3.17 above) as they are received from the Arizona Department of Revenue, beginning with the first such revenues generated from the Property and ending upon the earlier of the following: ~~ f 6.2.1. The expiration of this Agreement. "1. 6.2.2. When the Town has fully reimbursed the Owner/Developer for the costs of the l Public Improvements and Interest, even if total reimbursement is less than Thirty Million Dollars ($30,000,000). ~' 6.2.3. When the total cumulative amount deposited in the Reimbursement Account equals Thirty Million Dollars ($30,000,000). {00006071.DOC / 4~ 12/18/20078:47 PM MARANA SPECTRUM DEVELOPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 69 of 97 " ~ - Funds in the Reimbursement Account shall be reimbursed to the Owner/Developer pursuant to paragraph 6.4 below. 6.3. No Reimbursement Out of Construction Sales Tax Revenues. No portion of any reimbursement under this Article shall consist of Construction Sales Tax Revenues {see paragraph 1.3.3 above). 6.4. Reimbursement Payments. The Town shall pay to the Owner/Developer within the first 45 days of each calendar quarter all funds in the Reimbursement Account ("Reimbursement Payments"), beginning the first calendar quarter after the later of (i) Town's issuance of the certificate of occupancy for the last building constructed as the Initial Minimum Improvements as shown on the Initial Development Plan (see paragraph 2.3.1 above) or (ii) the Owner/Developer's satisfaction of all conditions precedent to receiving Reimbursement Payments as set forth in this Agreement. Any funds accrued in the Reimbursement Account but not yet disbursed to the Owner/Developer upon the expiration of this Agreement shall be paid to Owner/Developer within thirty days after the expiration of this Agreement. 6.5. Owner/Developer Audit. Not more than once each calendar year, the Owner/Developer may, at its own cost, audit Town sales tax returns and other appropriate financial records of the Town to assure prompt and accurate deposit into the Reimbursement Account of all revenues as required pursuant to this Agreement. 6.6. Annual Report. Within 45 days following the end of each Town fiscal year, the Town shall deliver to the Owner/Developer areport of all Sales Tax Revenues generated by or attributable to the Development which have been utilized by the Town in determining the amount deposited into the Reimbursement Account. 6.7. Limitations. During the Term of this Agreement, the Town shall not enter into any agreement or transaction which impairs the rights of Owner/Developer under this Agreement, including, without limitation, the right to receive the Reimbursement Payments and the proceeds of the Reimbursement Account in accordance with the procedures established in this Agreement. 6.8. Multiple Business Locations: Release of Tax Information. Since some businesses with multiple locations in the Town report their transaction privilege taxes. on the basis of revenues for all their locations in the Town, rather than separately for each location, Owner/Developer shall request each such business to separately report transaction privilege taxes for transactions at its business located in the Development. The Owner/Developer shall exercise reasonable efforts to obtain from all businesses in the Development a consent to release of tax information in a form reasonably acceptable to the Town. If the separate report required by this paragraph is not provided to the Town, the Town shall make a reasonable estimate of the Sales Tax Revenues derived from the Development based on all information available to the Town, including information provided by the Owner/Developer, .and the good faith certification by the Town's ,- Finance Director shall be considered final and binding upon the Owner/Developer. The final certification of the Town's Finance Director shall be subject to all applicable laws that may prohibit or limit the dissemination or use of transaction privilege tax and related information. Article 7. Cooperation and Alternative Dispute Resolution. 7.1. Aypointment of Representatives. To further the commitment of the Parties to cooperate in the progress of the Development, the Town and the Owner/Developer each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the [oooobon.voc / 4) iz/is/zoms:4~PM MARANA SPECTRUM DEVELAPMENTAGREEMENT Regular Council Meeting -August 3, 2010 -Page 70 of 97 ' g " OwnerJDeveloper. 'The initial representative for the Town (the "Town Representative") shall be the Planning Director, and the initial representative for the Owner/Developer shall be Trey Eakin or a replacement to be selected by the Owner/Developer. The representatives shall be available at ali reasonable times to discuss and review the performance of the Parties to this Agreement and the development of the Property. 7.2. Non-Performance; Remedies. If either Party does not perform under this Agreement (the "Non-Performing Party") with respect to any of that Party's obligations under this Agreement, the other Party (the "Demanding Party") shall be entitled to give written notice in the manner prescribed in paragraph 8.29 below to the Non-Performing Party, which notice shall state .the nature of the non-performance claimed and make demand that such non-performance be corrected. The Non-Performing Party shall then have (i) twenty days from the date of the notice within which to correct the non-performance if it can reasonably be corrected by the payment of money, or (ii) thirty days from the date of the notice to cure the non-performance if action other than the payment of money is reasonably required,. or if the non-monetary non-performance cannot reasonably be cured within thirty days, then such longer period as may be reasonably required, provided and so long as the cure is promptly commenced within thirty days and thereafter diligently prosecuted to completion. If any non-performance is not cured within the applicable time period set forth in this paragraph, then the Demanding Party shall be entitled to begin the mediation and arbitration proceedings set forth in this Article. The Parties agree that due to the size, nature and scope of the Development, and due to the fact that it may not be practical or possible to restore the Property to its condition prior to Owner/Developer's development and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific performance will likely be appropriate for the non-performance of a covenant contained in this Agreement. This paragraph shall not limit any .contract or other rights, remedies, or causes of action that either Party may have at law or in equity. 7.3. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a forty-five day moratorium. on arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by Owner/Developer and the Town. If the Parties cannot agree upon the selection of a mediator within seven days, then within three days thereafter the Town and the Owner/Developer shall request the presiding judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at least five years' experience in mediating or arbitrating disputes relating to real estate development. The cost of any such mediation shall be divided equally between the Town and the Owner/Developer. The results of the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratorium. 7.4. Arbitration. After mediation, as provided for in this Article, 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. § 12-501 et ;1. seq., and judgment upon the award rendered by the arbitrator(s) maybe entered in a court having jurisdiction. (00006071.DOC / 4} 12/18/2007 8:47PM MARANA SPECTRUM DEVEI,oPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 71 of 97 - 9 - Article 8. General Terms and Conditions. 8.1. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution or action of the Town Council. approving this Agreement (the "Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes (a) when the total amount of all Reimbursement Payments (see paragraph 6.4 above) equals Thirty Million Dollars ($30,000,000) or (b) on December 31 immediately following the earlier of (i) the twentieth anniversary of the Effective Date and (ii) the fifteenth anniversary of the elate the Interchange is completed by the Arizona Department of Transportation and first open for vehicular traffic and use by the general public. The Town at its option may record a document in the office of the Pima County Recorder which states the date the Interchange was completed by the Arizona Department of Transportation and first open for vehicular traffic and use by the general public. If the Parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written agreement of the Parties. 8.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right or remedy, and no waiver by the Town or the Owner/Developer of the non-performance 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. 8.3. 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 non-performance 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. Nothing in the use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 7.4 above, requiring disputes to be resolved by binding arbitration. 8.4. 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 the counterparts and attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 8.5. Headings. The descriptive headings of this Agreement are intended to be used to assist in interpreting the meaning and construction of the provisions of this Agreement. 8.6. Recitals. The recitals set forth at the beginning of this Agreement are hereby aclalowledged, confirmed to be accurate and incorporated here by reference. 8.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. f 8.8. Further Acts. Each of the Parties shall execute and deliver all documents and perform all C acts as reasonably necessary, from time to time, to carry out the matter 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. {00006071.DOC / 4} 12/18/20078:47 PM MARANA SFECTRUM DEVELOPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 72 of 97 " 10 " 8.9. Time Essence. Time is of the essence of each and every obligation by the Town and OwnerlDeveloper under this Agreement. 8.10. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties pursuant to A.R.S. § 9-500.05 (D). Owner/Developer shall retain the right to receive Reimbursement Payments as provided by paragraph 6.4 of this Agreement regardless of the status of title or ownership of any or all of the Property unless Owner/Developer expressly assigns its rights to receive the Reimbursement Payments. No assignment, however, shall relieve either party of its obligations under this Agreement, except that an assignment by Owner/Developer in connection with the transfer of title to the Property shall relieve Owner/Developer of its obligations under this Agreement if the transferee agrees to be fully bound by the provisions of this Agreement. Any assignment by OwneriDeveloper shall be subject to the approval of the Town, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Owner/Developer may, without the Town's consent, assign this Agreement to any Affiliate of Owner/Developer, or any entity in which Owner/Developer or an Affiliate of Owner/Developer is a managing member or managing partner or any entity in which BARCLAY GROUP and KIMCO DEVELOPERS, INC. are owners. As used in this paragraph, the term "Affiliate" means any entity under common control with Owner/Developer. After assignment of rights as provided in this paragraph, the assignee shall receive the right to sales tax reimbursements under Article 6 of this Agreement to the extent of the assignment. 8.11. No Title Encumbrance. Notwithstanding the fact that this Agreement is being recorded in the Official Records of Pima County, it is intended that this Agreement shall not be an encumbrance upon the title of any person or entity purchasing or owning a portion of the Property, and that the terms and conditions of the Agreement are not covenants running with the land and that no person or entity is bound by (or entitled to) the burdens and benefits of this Agreement unless the burdens aze expressly assumed by or the benefits are expressly assigned to that person or entity. 8.12. Lender Provisions. Notwithstanding pazagraph 8.10 above, the Town is aware that financing for development, construction, and operation of the Development may be provided, in whole or in part, from time to time, by one or more third parties {collectively, "Lender"), and that Lender may request a collateral assignment of this Agreement as part of its collateral for its loan to Owner/Developer. The Town agrees that such collateral assignments aze permissible without the consent of the Town. In the event of non-performance by Owner/Developer, the Town shall provide notice of non-performance to any Lender previously identified in writing to the Town at the same time notice is provided to Owner/Developer. If a Lender is permitted under the terms of its agreement with Owner/Developer to cure the non-performance and/or to assume ,l Owner/Developer's position with respect to this Agreement, the Town agrees to recognize the rights of Lender and to otherwise permit Lender to assume such rights and obligations of 1 Owner/Developer under this Agreement. Nothing contained in this Agreement shall be deemed 1. to prohibit, restrict, or limit in any way the right of a Lender to take title to all or any portion of the Property, pursuant to a foreclosure proceeding, trustee's sale, or deal in lieu of foreclosure. as The Town shall, at any time upon request by Owner/Developer or Lender, provide to any Lender an estoppel certificate, acknowledgement of collateral assignment, or other document evidencing that this Agreement is in full force and effect, that it has not been amended or modified (or, if appropriate, specifying the amendment or modification), and that no non-performance by {00006071.DOC / 4} 1 2/18/2007 8:47 PM MARANA SPECTRUM DEVEI.oPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 73 of 97 - 11 - Owner/Developer exists under this Agreement (or, if appropriate, specifying the nature and duration of any existing non-performance) and certifying to such other matters reasonably requested by Owner/Developer or Lender. Upon request by a Lender, the Town will enter into a separate assumption or similar agreement with the Lender consistent with the provisions of this paragraph. 8.13. No Partnership. 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. 8.14. Third Party Beneficiaries. 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 to this Agreement, and no such other person, firm, organization or corporation shall have any right or cause of action under this Agreement, except that each present and future Anchor Tenant is hereby made a limited third party beneficiary with respect to paragraphs 2.7 and 8.11 of this Agreement. Any Anchor Tenant is not made a third party beneficiary of any other teen, provision or covenant contained in this Agreement. No Anchor Tenant shall have the right to enforce any provision of this Agreement except paragraphs 2.7 and 8.11. Except as provided in paragraphs 2.7 and 8.11 of this Agreement, this Agreement is made and entered into for the sole protection and benefit of the Parties and their permitted assigns, and no person other than the Parties and their permitted assigns shall have any right of action based upon any provision of this Agreement. 8.15. Other Instruments. Each Party shall, promptly upon the request of the other, have acknowledged and delivered to the other any and all further instruments and assurances reasonably request or appropriate to evidence or give effect to the provisions of this Agreement. 8.16. Imposition of Duty Law. This Agreement does not relieve any Party of any obligation or responsibility imposed upon it by law. 8.17. Entire Agreement. This Agreement, including the attached exhibits, constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in this Agreement. 8.18. Amendments. No change or addition shall be made to this Agreement except by a written amendment executed by the Parties. The Parties agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in the final plats or development plans governing the Property and Marana Spectrum Plan as amended and superseded by this Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense ~ of the Party requesting the amendment.. 8.19. Names and Plans. Subject to customary reservations by the architects and other design ,~ professionals of copyrights to plans and specifications, the Owner/Developer shall be the sole 1 owner of all names, titles, plans, drawings, specifications, ideas, programs, ideas, 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 plans; provided, ~~ however, that in connection with any conveyance of portions of the infrastructure as provided in (00006071.DOC / 4} 12/18/20078:47PM MARANA SPECTRUM DEVEIAPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 74 of 97 - IZ - 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. 8.20. Good Standing: Authority. The Owner/Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of the state of Delaware and is authorized to do business in the state of Arizona. The Town represents and warrants to the Owner/Developer that it is an Arizona municipal corporation with authority to enter into this Agreement under applicable state laws. Each Party represents and warrants that the individual executing this Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 8.21. Severability. If any provision of this Agreement is declared illegal, invalid or unenforceable, in whole or in part, under present or future laws, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. In lieu of the illegal, invalid or unenforceable provision,. there shall be added automatically as part of this Agreement a provision as similar in terms to the illegal, invalid, or unenforceable provisions as may be possible and still be legal, valid, and enforceable, and this Agreement shall be deemed reformed accordingly. Without limiting the generality of the foregoing, if all or any portion of the payments required by the terms of this Agreement are determined, by a court of competent jurisdiction in a final non-appealable judgment, to be contrary to public policy or otherwise precluded, the parties shall utilize their reasonable, best efforts to promptly restructure and/or amend this Agreement, or to enter into a new agreement to afford the Owner/Developer the economic benefits of this Agreement in light of the benefits to the Town. 8.22. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 7.4 above, requiring disputes to be resolved by binding arbitration. 8.23. Interpretation. This Agreement has been negotiated by 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. 8.24. Recordation. The Town shall record this Agreement in its entirety in the office of the Pima County Recorder no aaer than ten days after it has been executed by the Town and the Owner/Developer. 8.25. No Owner/Developer Representations. Nothing contained in this Agreement shall be deemed to obligate the Town or the Owner/Developer to commence or complete any part or all of the development of the Property. 8.26. A nQ royal. If any Party 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. 8.27. Force Ma'eure. If any Party shall be unable to observe or perform any covenant or condition of this Agreement by reason of "force majeure," then the failure to observe or perform such covenant or .condition shall not constitute an event of non-performance under this Agreement so long as such Party shall use its commercially reasonable efforts to remedy with all reasonable dispatch the event or condition causing such inability and such event or condition can {000060n.DOC / 4} 12/18/20078:47 PM I, I, {'~ MARANA SPECTRUM DEVELAPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 75 of 97 - 13 - be cured within a reasonable amount of time. "Force majeure" as used in this paragraph means any condition or event not reasonably within the control of such Party, including without limitation, "acts of God," strikes, lock-outs, or other disturbances of employer/employee relations; acts of public enemies; orders or restraints of any kind of government of the United States or any state or subdivision thereof or any of their departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints of government and of people; explosions; and partial or entire failure of utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee relations or to settle legal or administrative proceedings by acceding to the demands of the opposing party or parties, in either case when such course is, in the judgment of such Party, unfavorable to a Party shall not constitute failure to use its best efforts to remedy such a condition. 8.28. 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. 8.29. Notices and Filin>s. 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, sent via overnight national courier, or sent by registered or certified United States mail, postage prepaid, if to {or to such other addresses as any Party may from time to time designate in writing and deliver in a like manner): To the Town: Town Manager Town of Marano Marano Municipal Complex 11555 West Civic Center Drive, A3 Marano, Arizona 85653 To Owner/Developer: KIMCO BARCLAY MARANA, L.P. C/O BARCLAY GROUP VENTURE CAPITAL, L.L.C. 7702 E. Doubletree Ranch Road, Suite 220 Scottsdale, Arizona 85258 with a copy to: KIIvICO DEVELOPERS INC. Attn: Dan Slattery, Executive Vice President 1111 Burlington Avenue, Suite 113 Lisle, IL 60532 and: KIIvICO REALTY CORPORATION Attn: Ruth Mitteldorf 3333 New Hyde Park Road New Hyde Park, New York 11042-0020 [Remainder of page intentionally left blank.] {00006071.DOC/ 4} 12/18/2007 8:47 PM MARANA SPECTRUM DEVELOPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 76 of 97 - 14 - IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: THE TOWN OF MARANA, an Arizona municipal core/oration s. :''/ r,• r ~~~,2(~ By: ~~, Ed Honea, Mayor _ ~ ( ["; Date: J~ ATTEST: yn C. ronson, Clerk APPROVED AS TO FORM: OWNER/DEVELOPER: KIMCO BARCLAY MARANA, L.P., a Delaware limited partnership By: KD MARANA 1553, INC., a Delaware corporation, its general partner By: Name: Title: Date: The foregoing instrument was acknowledged before me on by , the of KD MARANA 1553, INC., a Delaware corporation, general partner of KIMCO BARCLAY MARANA, L.P., a Delaware limited partnership. My commission expires: Notary Public ~1~ L I tl".~ °3 a~ {00006071.DOC / 4} 12/18/20078:47PM MARANA SPECTRUM DEVELOPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 77 of 97 - ZrJ - ss County of Pima ) IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TOWN: THE TOWN OF MARANA, an Arizona municipal corporation By: Ed Honea, Mayor Date: ATTEST: Jocelyn C. Bronson, Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney STATE OF 11 ino ~s OWNER/DEVELOPER: KIMCO BARCLAY MARANA, L.P., a Delaware limited partnership By: ICD MARANA 1553, INC., a Delaware corporation, its general P ~' ~" By: Name• ie a ry Title: Executive Vice Presi ent Date: December 22, 2007 DuPage ss County of ) December 22, 2007 The foregoing instrument was acknowledged before me o~y Daniel C. Slattery the Executive Vice Preside~~ MARANA 1553, IxC., a Delaware corporation, general partner of I{7MC0 BARCLAY MARANA, L.P., a Delaware limited partnership. MyQcommilssion expires: ~~tV PV9 r°p• ~* '•Lo WANDA A. UNDERWOOD NAO SFI~CILAL ti My COMMISSION EXPIRES ~.'••..: • ~ SEPTEMBER 11, 2010 FOF ItV~r ~~~~r~ra?4 - ~Gni~i~~ Notary Public (00006071.DOC / 4} MAxnxA SPECTRUM DEVII.oPMENT AGREEMENT -15- 12/18/20078:97PM .l. 1p.~~ ~~m',~„ Kid Regular Council Meeting -August 3, 2010 -Page 78 of 97 LIST OF EXIiIBTTS A. Legal description of the Property B. Conceptual description of the master site plan for the Development C. Description of the Public Improvements {00006071.DOC / 4} MARANA SPECTRUM DEVELOPMENT' AGREEMENT EXHIBIT A 12/18/20078:47PM Regular Council Meeting -August 3, 2010 -Page 79 of 97 - 16 - EXHIBIT A Legal description of the Property i "'~' ~~ {00006071.DOC / 4} MARANA SPECTRUM DEVELOPMENT AGREEMENT 12/18/20078:47 PM Regular Council Meeting -August 3, 2010 -Page 80 of 97 E~-IIBrr A EXH i BIT A Legal Description A parcel of land boated within a portion of the Northwest quarter of Section 22, Township 12 South, Range 12 East, of the Gila and Salt Foyer Base and Meridian, Pima County, Arizona, more particularly described as follows: Commencing at the North quarter termer of Section 22; Thence S 00°2506" E 51.89 feet, along the East Gne of the northwest quarter ofi said Sedion 22, tD a point; Thence leaving said East Pure, S 89°34'54" W 30.00 feet, to a point on the West right-of- way line, of Camino De Manana, as recorded in Road Maps Book 2, Pages 1-4, Puna Couniy Records, said pant also marking the Point of Beginning Thence S 00°2506" E 1,224.75 feet, along said West right-ot way ibe, to a point on the r>orthexly boundary tine of Unisource ~rcJY Corporation, as recorded in Docket 2363, Page 94, Pima Cour~y Records; Thence N 34°51`57" W 871.54 feet. along said northerly boundary line. to the beginning of a 7829.44 foot radius rron-tangent cxxve to the felt, having a rad"ral bearing of N 35°2T41" W; Thence leaving said northerly botndary ine. and abng said crave. 58.18 feet, through a central angle of 00°25`33", to a point; Thence N 42°18'1 D" E 593.87 feet, to the begir~ting of a 7729.44 foot radius non-tangent curve to the left, having a radial bearing of N 40°11'58" W; Thence attxrg said curve, 55.91 feet, through a central angle of 00°24`52", to the Point of Beginning. Together with a parcel of land located within a por#bn of the Northeast quarter of Set~ion 22, ark a portbn wrthin the Southeast quarter of Section 15, Township 12 South, Range 12 East, of the Gifa and Salt River t3ase and Meridian, Puna County, Arimna, more partitxxatarty described as follows: Commencing at the North quarter comer of Section 22; Thence N 89°4516" E 3i.09feet, along the North Gne of the northeast quarter of said Section 22, to a point on the East right-of~nray line of Camino De Manana. as seconded in Road Maps Book 2, Pages 1-4, Pima County Records. and the beginning of a 379.26 foot radius ntxNangerrt txu've the right, having a radal bearing of S86°04'08"E, said point also marking the Point of Beginning; Thence leaving said North lase, along said curve and said East right-of-vway line, 30.19 feet, through a central angle of 04°33'44", to a point; Regular Council Meeting -August 3, 2010 -Page 81 of 97 Thence leaving said East right-ofa+-ray line, N 89°45'16° E 30.54 feet, to the beginning of a 7729.44 foot radius non tangent carve to the eft, having a radial bearing of N 41°32'37" W; Thence along the curve, 128.00 feet, through a ventral angle of OQ°56'56', to the beginning of a 7549.44 foot radius reverse curve the right; Thence along said reverse curve, 528.73 feet, through a ventral angle of 04°00'46". to a Point; Thence N 51°31'13" E 610.78 feet, to the begthning of a 40.00 foot radius ctxve to the ri9~ -Thence along said curve, 6295 feet, through a central angle of 90°10'00", to a point; Thence S 38°18'47" E 412.88 feet, to the beginning of a 1507.39 foot radius curve io the left; Thence along said curve,1366.29 feet, through a central angle of 51°55'57", to a poir~ Thence N 89°45'16" E 87.91 feel, to a point of the East line of the northeast quarter of said Section 22; Thence S 00°19'58" E 2,558.47 feat, along said East Gne, to the East quarter corner of said Section 22; Thence S89°45'49"W 1,621.14 feet, abng the South line of the northeast quarter, of sari Section 22, to a point on the northeriy boundary Inc of UrMSOUrce Energy Corporation, as recorded ~ Docket 2363, Page 94, Pima County RecoMs, and. the beginning of a 11272.37 foot radius rpn-tangent cove to the r~ht. having a radial gearing of N 48°03'25" E; Thence leaving said South ine and abng said curve atxJ said northeay boundary line. 1603.23 feet. through a central angle of 08°08'56", to a point on said East right-of-way line ofi Camino De Mariana; Thence leaving said northeriy boundary I'me, N 00°25'06" W 1,334.45 fem. along said East right-aF-way Gne, to fhe beginning vlT a 379.26 foot radius non-tarx~ent cove to the right, having a radii bearing of N 89°23'42" E; Thence abng said curve and continuing aia~g said East right-of-way line, 30.02 feet, through a ventral angle of 04°32'10". to the Poirrt of Beginning. The total area of the two paroeis contains: t 7.315,255 more or less. See attached exhibit `A". feet or 1167.9352 acres, Regular Council Meeting -August 3, 2010 -Page 82 of 97 I I 1 I A'-- --------- o I I w ~G~ I rn i `~ BL4 I Z POINT ~ BEGtNNWG j PARCEL #2 ( 0 z ~~ ~~ N89'45'16°E 2629.14' I I S00'25b6"E 51.89' m I I I I PO~VT OF BEGiNN~IG ~ o ~ ~ ~ 1 PARCEL #1 ~ I I G`L ~., ~, I i $ ~ i I ,°~, ,,, 0 17,014,993 S.F. I ~ a X161.0421 ACRES I j m ;; I ° '~ ~ i I I v~ ~ ~ o 6Q CAM~VO I I rn n ~ i v ~ AAp1NANp- i i P F1 #t ~ I I 1300,262 S.F. ( I 16.8931 ACRES I t t-------------- - - - - ----------J ~ -PO~tT OF COl1l~EENCEMENT 1 NORTH 1/4 COR. SEC. 22 BOUNDARY LINE TABLE LINE BEARING DISTANCE BL1 S00'25'Q6"E 1224.75' BL2 N34'S1'S7"W 871.54' 8L3 N42`I6'10"E 593.87' BL4 N89'45'16"E 30.54' BL5. N51'31'13"E 610.78' BL6 53$'18'47"E 412.88' BL7 N89 45'16"E 87.91' BL8 S00'19'S8"E 2558.47' BL9 S89'45'49"W 1621.14' BL10 N00'25'O6"W 1334.45' OVERALL. -RRF ARFA 17.315,255 S.F. 1167.9352 ACRES BOUND ARY CURV E TABLE CURVE LENGTH RADIUS DELTA RAD.BRG. BCt 58.18' 7829.44' 0'25'33' N35'27'41 "W BC2 55.91' 7729.44' 0'24'52" N40'11'S8'W BC3 30.19' 379.26' 4'33'44' S86'04'08"E BC4 128.00' 7729.44' 0'56'56' N41'32'37"W BCS 528.73' 7549.44' 4'00'46' BC6 62.95' 40.00' 90'tObO" BC7 1366.29' 1507.39' 51'55'57" BC8 1603.23' 11272.37' 8'08'56" N48'03'25"E BC9 30.02' 379.26' 432'10" N89'23'42"E R ==vv PRO.~CT NQ 6852BGP O IL 1 1 0 N ~ M O. G/~HIBIT 'A' DATE 081>al2007 «v.K~a.w..a..mea.rw.ns.m. BY: BK2 ,. «asoom w. wasras ~Y`S ~ SCALE T = 1017 ............ ~.~..,.a ..,.,.. SHEET NO 1 OF 2 Regular Council Meeting -August 3, 2010 -Page 83 of 97 _. SITE AREA PARCEL #t (300,262 S.F. 16.8931 ACRES SW 1 /4. SEC. 15, T12S, R12E CAMS DE MANAMA POINT QF COMI~IFTICl~+1F~IT NORTH 1/4 COR. SEC. 22, T12S, R12E P.0.B. PARCEL #1 SEE DETAIL "A" PARCEL ~1 i ~ BC1 ~"~ SITE AREA PARCEL ~Z: 17,014,993 S:F. 1161.0421 ACRES SE 1 /4. SEC. 15, ~ T12S, R12E BC6 ~ '~ /r CAN~NO [~ MANAMA N89'45'16"E 2629.14' ~ P.0.6. PARCEL ~2 SEE DETAIL "A" ~-7 .. ~ c ~ SEE DETAIL 'A" ~~ ~ m ~lr, 60` CAMINO DE MANAMA . F ~ ~ PARCEI. ~2 m a I 0 Z ~~ _ N-S MID-SECTION LINE ~y ~ N00'25'O6°W 2633.06' ~7,s CENTER OF SEC. 22, ,~ 1004.06' ~ BL9 T125, R12E '~"•- S89'45 49 W 26. (V N U W w N N ~~ 0 ~ vi N zr 1~ Mi w N w F ~ W ~ r O ~ ~ N ~ U~ cv ''_ N I' rA U w (Wf1 • OVERALL SITE AREA: ±7.315.255 S.F. 1167.9352 ACRES R PROJECT N0. 68528(3P • . , • » ~ ~ a. EXHIBIT 'A' DATE ot3rtar~r ~-,K~ar..s«r«W.»rw.~z~ MARANA sPECrWUM $'r- BK2 ~. .~.~. scats r = ~ PIAAA c~ouNTY, aRtZONa ~.......~ . ~...°..e.....~.e. SHEET NQ 2 OF 2 I f s i i 1 Regular Council Meeting -August 3, 2010 -Page 84 of 97 EXHIBIT B Conceptual description of the master site plan for the Development {00006071.DOC / 4} MARANA SPECTRUM DEVELOPMENT AGREEMENT 12/18/20078:47PM Regular Council Meeting -August 3, 2010 -Page 85 of 97 EXHIBIT B ~I, iF~ WL'a n+f^ Regula Exx~IT C Description of the Public Improvements ~~ "~ ~, {00006071.DOC / 4} 12/18/2007 S:47PM MARANA SPECTRUM DEVEI.oPMENT AGREEMENT Regular Council Meeting -August 3, 2010 -Page 87 of 97 EXHIBIT C Exhibit C Scope of Work Marana Spectrum Drainage 1300 cfs Drainage Channel Excavation Gabion/Shot Crete Lining Landscaping Transition at Railway Drop Structures/Grade Control 800 cfs Drainage Channel Excavation Concrete Structural Lining 1,100 cfs Wash Enclosure 1100 cfs wash enclosure (con-arch or CSP equivalent to twin 5x7 box) 1100 cfs open channel d/s of Twin Peaks Utility Relocations d/s of Twin Peaks 1,100 cfs Wash Culvert 1100 cfs culvert @ Twin Peaks Road Building Constructed by Developer Bus Pullout Traffic Signals at Lee Driveway Traffic Signals at Twin Peaks mid-block Deceleration Lanes Constructed by Town of Marana Median Break at Lee Reconstruct Camino De Manana Median Break at unsignalized full moves access to Barclay Bridge Q-I-10/Twin Peaks Road TI Underpass Linda Vista-2 Extra Lanes and Double Left Hand Turn at Twin Peaks Twin Peaks New Lanes Exhibit C - I Regular CounCmN'fe2ti~~~A~agust 3, 2010 -Page 88 of 97 t Exhibit C continued Water Supply/F9re Protection Fire Storage Tank(840,000 gallon} Land for Storage Tank New 12" parallel well feed from site to existing Town storage Tank New 16" Z-Zone Water Main New Well Feed on Camino De Marana and Lands Vista (24" ductile Iron) New Hydrants on Linda Vista and Twin Peaks PRV at Z-Zone Booster Station -Hartman Vista Reservoir Site Public Sewer Improvements Reconstruct public 10" to 12" Oasis Hills Outfall New public 8" sub-trunk to SE property corner per Pima County New public 15" sewer to south west property limits New steel sleeve at Twin Peaks Crossing New 15" public sewer crossing Twin Peaks to existing manhole Offsite Regional Tntnk Sewer Improvements Exhibit C - 2 Regular Coun~~~ t~-~Ragust 3, 2010 -Page 89 of 97 Exhibit C Page Summary Community Improvements Marana Spectrum 12/21/2007 Good Faith Cost Estimate Item Total Develo Total Town Total Item Cost Drainage $6,580,000 $1,030,000 $7,610,000 Road Building $940,000 $4,080,000 $5,020,000 Water Supply/Fire Protection $2,960,000 $2,960,000 Sewer Im rovements $1,050,000 E1,050,000 Total $11,530,000 $5,110,000 $16,640,000 Regular Council Meeting -August 3, 2010 -Page 90 of 97 Consulting 15% Contingency 10% lYi~~~~ ~~~~~ ~^~.- 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council Item L 1 From: Jocelyn C. Bronson ,Town Clerk Strategic Plan Focus Area: Not Applicable Subject: Relating to Liquor Licenses; recommendation to the state liquor board regarding a New Series #12 (Restuurant) liquor license application submitted by Fei Cheng on behalf of Sushi Cortaro, located at 8225 N. Courtney Page Way, #141 Discussion: This application is for a New Series #12 (Restaurant) liquor license submitted by Fei Cheng on behalf of Sushi Cortaro, located at 8225 N. Courtney Page Way, #141. Pursuant to state law, the application was posted at the premises where the business is to be conducted. The posted notice provided that residents within a one mile radius from the premises may file written arguments in favor of or opposed to the issuance of the license with the Town Clerk's Office within 20 days of the posting. As of July 26th, no written arguments were received by the Clerk's Office for or against the proposed liquor license. The town's Building, Planning and Legal Departments have reviewed this application to determine whether the applicant is in compliance with zoning, building and other legal requirements for the business. Additionally, the Marana Police Department has conducted a local background check. All departments found the applicant to be in compliance and have no objections to the issuance of this license. The Town Council must enter an order recommending approval or disapproval of the application within 60 days after filing of the application. By state statute, "in all proceedings before the town council, the applicant bears the burden of showing that the public convenience requires and that the best interests of the community will be substantially served by the issuance of a license." If the Council's recommendation is for disapproval, the order must include an attachment stating the specific reasons for the recommendation of disapproval and including a summary of the testimony or other evidence supporting the recommendation. If the Council enters an order recommending. approval of the application, then no hearing before the Arizona state liquor board will take place, unless the director of the DLLC, the liquor board or a resident within a one mile radius from the premises requests a hearing. If the Council enters an order recommending disapproval of the application or does not submit a recommendation to the DLLC within the 60-day time period, or if the director, board or a resident within a one mile Regular Council Meeting -August 3, 2010 -Page 91 of 97 radius from the premises requests a hearing, then the state board will hold a hearing regarding the application. At the hearing, the state board will consider all evidence and testimony in favor of or opposed to the granting of the license. The decision of the board to either grant or deny an application will normally take place within 105 days after the application has been filed, unless the director of the DLLC deems it necessary to extend the time period. ATTACHMENTS: Name: Description: Type: ^ Descriptions_of common types of liquor licenses Descriptions of common types of liquor licenses Backup Material (00018.2.33j. DOC ^ Affidavit of Posting Sushi _ Cortaro.pdf Affidavit of Posting Backup Material ^ Sushi Cortaro Form LGB _ _ Recommendation.pdf Recommendation Backup Material Staff Recommendation: Staff recommends that an order recommending approval be submitted to the DLLC for this liquor license application. Suggested Motion: OPTION l: I move to adopt an order recommending approval of a New Series #12 (Restuarant) liquor license application submitted by Fei Cheng on behalf of Sushi Cortaro, located at 8225 N. Courtney Page Way, #141. OPTION 2: I move to adopt an order recommending disapproval of a New Series #12 (Restuarant) liquor license application submitted by Fei Cheng on behalf of Sushi Cortaro, located at 8225 N. Courtney Page Way, #141. Regular Council Meeting -August 3, 2010 -Page 92 of 97 Department of Liquor Licenses and Control Descriptions of Common Types of Liquor Licenses Series 06 Bar This liquor license is transferable from person to person andlar location to location within the same county only and allows the holder both on- & off-sale retail privileges. This license allows a bar retailer to sell and serve spirituous liquars, primarily by individual portions, to be consumed on the premises and in the original container for consumption on or off the premises. A retailer with off-sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Payment must be made no later than the time of delivery. flff-sale ('"To Go°'} package sales of spirituous liquor can be made on the bar premises as long as the area of off-safe operation does not utilize a separate entrance and exit from the ones provided for the bar. A hotel or mote! with a Series 06 license may sell spirituous liquor in sealed containers in individual portions to its registered guests at any time by means of a minibar located in the guest rooms of registered guests. The regis#ered guest must be at least twenty- one (21} years of age. Access to the minibar is by a key or magnetic card device and not furnished to a guest between the hours of 1:00 a.m. and 6:00 a.m. Monday through Saturday and 1:00 a.m. and 14:00 a.m. on Sundays. This is a quota license, which means there are no "new" Series 06 licenses available. It must be purchased privately and the price is based on availability in the county. Once a Series 06 has been purchased, the buyer must apply for a transfer to have the license put in his or her name, at the same or another location. Series 07 Beer and Wine Bar This liquor license is transferable from person to person and/or location to location within the same county only and allows the holder both on- & off-sale retail privileges. This license allows a beer and wine bar retailer to sail and serve beer and wine, primarily by individual portions, to be consumed on the premises and in the original container for consumption on or aff the premises, A retailer with. off-sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Off-sale (""To Go"} package sales can be made on the bar premises as fang as the area of off-sale operation does not utilize a separate entrance and exit from the one provided for the bar. Payment must be made no later than the time of delivery. This is a quota license, which means there are no "new" Series 07 licenses available. It must be purchased privately and the price is based on availability in the county. Once a Series 07 has been purchased, the buyer must apply for a transfer to have the license put in his or her name, at the same or another location. Regul~~~l~in~ -August 3, 2010 -Page 93 of 97 Department of Liquor Licenses and Control Descriptions of Common Types of Liquor Licenses Series 09 Liquor Store This liquor license is transferable from person to person andfor location to location within the same county only and allows the holder off-sale retail privileges. This license allows a spirituous liquor store retailer to sell all spirituous liquors, only in the original unbroken package, to be taken away from the premises of the retailer and consumed off the premises. A retailer wi#h off sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Payment must be made no later than the time of delivery. Series 10 Beer and Wine Store This non-transferable, off-sale retail privileges liquor license allows a retail store to sell beer and wine {no other spirituous liquors), only in the original unbroken package, to be taken away from the premises of the retailer and consumed off the premises. A retailer with off-sale privileges may deliver spirituous liquor off of the licensed premises in connection with a retail sale. Payment must be made no later than the time of delivery. Series 11 Hotel/Motel This non-transferable, on-sale retail privileges liquor license allows the holder of a hotel/motel license to sell and serve spirituous liquor solely for consumption on the premises of a hotel or motel that has a restaurant where food is served on the premises. The restaurant on the licensed premises must derive at least forty percent (40°fo} of its gross revenue from the sale of food. The holder of this license may sell spirituous liquor in sealed containers in individual portions to its registered guests at any time by means of a minibar located in the guest rooms of registered guests. The registered guest must be at least twenty-one (21}years of age. Access to the minibar is by a key or magnetic card device and not furnished to a guest between the hours of 1:00 a.m. and 6:00 a.m. Monday through Saturday and 1:00 a.m. and 10:00 a.m. on Sundays. S€~ries F~estaurant This non-trarrsfarable, on-sale reta€( privileges liquor [i~enee ({o~~€s the holder of a restaurant li~er~se to sell ar~d serge spirit+~e~s liquor solely for consumptioF~ on the prer~~ises of an ,,shment ~~hich ~~r~i~es at lust frarty percent (~fl~~'o) of its gross revenue frc~i th€ ~ -ale ®f ~,..~~r. F:~ilure to meet the 4{~~r`c= food requirement shall result in revocation of the license. Regul~bb'~~l~n~ -August 3, 2010 -Page 94 of 97 Print Form ARIZONA DEPARTMENT OF LIQUOR LICENSES AND CONTROL 800 W Washington 5th Floor Phoenix AZ 85007-2934 www.azliquor.gov (602) 542-5141 AFFIDAVIT OF POSTING June 30, 2010 Date of Posting: Date of Posting Removal: July 26, 2010 Cheng Fei Applicant Name: Last First Middle 8225 N. Courtney Page Way # 141 Marana 85743 Business Address: Street city zip 12104050 License #: I hereby certify that pursuant to A.R.S. § 4-201, I posted notice in a conspicuous place on the premises proposed to be licensed by the above applicant and said notice was posted for at least twenty (20) days. Print Name of City/County Official Title Telephone # Signature Date Signed Return this affidavit with your recommendation (i.e., Minutes of Meeting, Verbatim, etc.) or any other related documents. If you have any questions please call (602) 542-5141 and ask for the Licensing Division. Individuals requiring special accommodations please call (602) 542-9027 Lit0119 4/2009 Regular Council Meeting -August 3, 2010 -Page 95 of 97 Print Form Arizona Department of Liquor Licenses and Control 800 West Washington, 5th Floor Phoenix, Arizona 85007 www.azliquor.gov 602-542-5141 LOCAL GOVERNING BODY RECOMMENDATION MARANA 12104050 CITY,~fOWN°°OF STATE APPLICATION # PIMA COUNTY OF ,ARIZONA. CITY/TOWN/COUNTY# LL2010-07 ORDER # Regular Marana Town Council At a meeting of the (Regular or Special) (Governing Body) Marana 3rd August of held on the day of the City~'Tow County 2010 the (Day) (Month) (Year} Fei Cheng application of 12104050 the premises described in Application # considered as provided by Title 4, A.R.S. as amended. for a license to sell spirituous liquors at 12 License Class Series was Fei Cheng IT IS THEREFORE ORDERED that the APPLICATION of is hereby recommended for (Day) (Month) a license to sell spirituous liquors of the class, and in the manner designated in the Application.. IT IS FURTHER ORDERED that a Certified Copy of this Order be immediately transmitted to the Department of Liquor Licenses and Control, Licensing Division, Phoenix, Arizona. CITYITOWN%LOUNTY CLERK ~ ~._~e: DATED AT This day of lic 1007 05/2009 (approval/disapproval) ~. a„ * Disabled individuals requiring special accommodations please call the Department Regular Council Meeting -August 3, 2010 -Page 96 of 97 '..~~~ ~~ ~~~ 1'sFtwW •do AYYRB*xk 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 3, 2010, 7:00:00 PM To: Mayor and Council Item D 1 From: Steve Huffman ,Intergovernmental Affairs Administrator Strategic Plan Focus Area: Not Applicable Subject: L~ative/Intergovernmental Report: Discussion/Direction/Action regarding all pending state and federal legislation and report on recent meetings of other legislative bodies Discussion: This item is scheduled for each regular council meeting in order to provide an opportunity for discussion of any legislative or regional intergovernmental item that might arise. Periodically, an oral report may be given to supplement the Legislative Bulletins. ATTACHMENTS: Name: Description: Type: No Attachments Available Staff Recommendation: Upon the request of Council, staff will be pleased to provide recommendations on specific legislative/intergovernmental issues. Suggested Motion: Mayor and Council's pleasure. Regular Council Meeting -August 3, 2010 -Page 97 of 97 DROWNING IMPACT AWARENESS MONTH PROCLAMATION WHEREAS Drowning Impact Awareness Month will raise awareness that the number and impact of child drowning in Arizona affects everyone; and WHEREAS the drowning incidents in Arizona take the lives of the equivalent of a classroom of children each year; and WHEREAS a child drowning can happen to any family regardless of education, race or socio-economic background; and WHEREAS families can take simple steps to protect their children around water to avoid the tragedy of the unnecessary loss of life; and WHEREAS keeping children healthy and safe is a priority for the Drowning Prevention Coalition of Arizona, Safe Kids Tucson and the Town of Marana; and WHEREAS raising awareness through education will increase knowledge of the effective measures to take to prevent drowning. NOW, THEREFORE, the Mayor and Council of the Town of Marana proclaim August 1 through August 31, 2010 DROWNING IMPACT AWARENESS MONTH IN THE TOWN OF MARANA and urge all citizens to familiarize themselves with water safety practices. Dated this 3rd day of August, 2010. ~e Mayor Ed Honea ATTEST: ocelyn .Bronson, Town Clerk HONORING ORA MAE HARK PROCLAMATION It is with deep love, respect and gratitude that we commemorate the Marana life of Ora Mae Harn with this proclamation. WHEREAS Ora Mae touched the lives of children and adults alike as Mrs. Claus at Christmas, as a bus driver and cafeteria worker for the Marana Unified School District, forming the Marana Food Bank and directing health care issues at the Marana Health Center, securing bank protection for the Santa Cruz River, and establishing the Marana Rotary and the Marana Heritage Conservancy; and WHEREAS Ora Mae represented the Pima Association of Governments, Arizona Women in Municipal Government, was a Council Member and Mayor of Marana, participated in a humanitarian mission to Kosovo in zooo and became the first inductee into Marana's Hall of Fame in zoo; and WHEREAS Ora Mae's heart knew no boundaries when it came to Marana. She was truly a champion of difficult causes that always came to fruition through her tenacity, perseverance and belief in doing the right thing. Marana citizens past, present and future will be forever indebted to the energy, vitality and commitment of Ora Mae to our community. NOW, TH EREFORE, the Mayor and Town Council do hereby proclaim that the life of Ora Mae Harn will live on today and always in the projects carrying her name, the acts she performed as a citizen, as a Council Member, Mayor, beloved friend, counselor, wife, mother, grandmother, and great grandmother. We call upon all who knew her to join us in celebrating her life and accomplishments with your prayers and good wishes for the next part of her spirited journey. Ora, we will never forget your compassion, your joy, your enthusiasm and your smile. Dated this 3rd day of August, zoo. Dryt•e Mayor Ed Honea ATTEST: Jocelyn .Bronson, Town Clerk