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HomeMy WebLinkAboutResolution 2013-096 retail development tax incentive agreement for continental ranch parcel 60MARANA RESOLUTION NO. 2013-096 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF A RETAIL DEVELOPMENT TAX 1NCENTIVE AGREEMENT FOR THE PROPOSED DEVELOPMENT OF CONTINENTAL RANCH PARCEL 60 LOCATED IN THE VICINITY OF THE NORTH 1NTERSECTION OF TIFFANY LOOP AND NORTH CASA GRANDE HIGHWAY. WHEREAS A.R.S. § 9-500.11 authorizes the Town to enter into a retail development t� incentive agreement under certain circumstances; and WHEREAS the Mayor and Council 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 t� incentive, the retail use proposed to locate its store on a portion of Continental Ranch Parcel 60 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 Continental Ranch Parce160 Development Agreement; and WHEREAS the Town's finding that the proposed tax incentive is anticipated to raise more revenue than the amount of the incentive within the duration of the Continental Ranch Parce160 Development Agreement has been verified by an independent third party; and WHEREAS on October 1, 2013, the Town adopted a notice of intent to enter into the Continental Ranch Parce160 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 Continental Ranch Parcel 60 Development Agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Continental Ranch Parcel 60 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 Continental Ranch Parcel 60 Development Agreement attached to and incorporated by this reference in this Resolution as Exhibit A, for and on behalf of the Town of Marana. Resolution 2013-096 - 1- 10/8/2013 9:42 AM FJC 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 COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 15 day of October, 2013. J' Mayor Ed nea ATTEST: :":• � : • •:u �%��� / , l� �� ,, �_ - �//� - , - �'.�� , - : , , , , Resolution 2013-096 - 2- 10/8/2013 9:42 AM FJC CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT TOWN OF MARANA ARIZONA THIS DEVELOPMENT AGREEMENT �thiS ��Agreement�� is made and entered into by and between the TowN oF MARANA, an Arizona municipal corporation (the "Town"), and CONTINENTAL RANCH DEVELOPMENT LLC, an Arizona limited liability company (the "Owner"). The Town and the Owner are sometimes collectively referred to as the "Par- ties," either one of which is sometimes individually referred to as a"Party." RECTTALS A. The Owner is the current owner of an unimproved vacant parcel of land located on Tiffany Loop bearing Pima County Assessor's parcel number 226-08-010B and re- ferred to in this Agreement as the "Owner's Land," depicted in Exhibit A attached to and incorporated by this reference in this Agreement. B. The Owner's Land is a portion of Continental Ranch Parce160, as depicted in the Continental Ranch Specific Plan adopted by Town of Marana Ordinance No. 88.09 and amended by Town of Marana Ordinance Nos. 92.11, 96.36, 97.29, 98.25, 99.25, 2000.01, 2002.01, and 2002.11. C. The Parties anticipate that the Owner will develop the Owner's Land into a pro- ject containing retail commercial uses and other uses consistent with the Continental Ranch Specific Plan and this Agreement (the "Development"). D. Subject to the terms and conditions of this Agreement, the Parties desire to ad- dress various public infrastructure and development issues related to the Owner's Land. E. The Development is consistent with the Towri s long-term economic development strategies and is expected to create a source of significant tax revenue for the Town for many years. F. The Development will have a substantial positive economic impact on the Town because it is expected to provide commercial and retail opportunities consistent with the businesses targeted by the Town. G. The Development is in compliance with the Towri s adopted and approved Gen- eral Plan (as defined in A.R.S. � 9-461). H. The Development is in compliance with the Continental Ranch Specific Plan. I. The Town is authorized by A.R.S. � 9-500.05 to enter into a development agree- ment with a landowner or other person or entity having an interest in real property Exhibit A- Resolution 2013096 CONT'INENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC -1- located within the Town to facilitate development of the property by providing for, among other things, the conditions, terms, restrictions, and requirements for develop- ment and public infrastructure and the financing of public infrastructure. J. In approving this Agreement, the Town Council has found and determined that certain activities relating to the Development are economic development activities with- in 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 the Owner with the reimbursement in this Agreement as an inducement to cause the Owner to construct, own and operate the Development in the Town. K. 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. L. The Town Council finds that the Development will raise more revenue for the Town than the amount of the reimbursements to the Owner within the duration of this Agreement. M. An independent third party not financed by the Owner 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 within the duration of this Agreement. N. The Town Council finds that in the absence of the reimbursements to the Owner 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. O. The Owner will incur out-of-pocket public infrastructure construction costs and will make certain contributions for public infrastructure in the immediate vicinity of and directly benefiting the Development. P. The reimbursements to the Owner provided pursuant to this Agreement are in- tended to reimburse the Owner for its out-of-pocket public infrastructure construction costs and public infrastructure contributions as described more specifically in this Agreement. AGREEMENT Now THEREFORE in consideration of the foregoing recitals, which are incorporated into this Agreement as though fully restated here, and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. Term. This Agreement shall become effective upon its execution by all the Parties and the effective date of the resolution 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 ter- minate and shall thereafter be void for all purposes on the 15� anniversary of the Effec- tive Date. Exhibit A- Resolution 2013096 CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC - 2 - 2. Proposed uses. The Owner intends attract a retail establishment with longevity in marking, selling, and servicing specialized construction, agricultural, turf and forestry equipment and products. Overall, the Development will create substantial additional sales tax revenues for the Town, will assist in the creation or retention of jobs 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. 3. Definitions. The following definitions shall apply to this Agreement: (A) "Construction Sales Tax Revenues" mean those portions of the Towri s trans- action 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 as part of the Development. (B) The "Development" is defined in recital C above and described in para- graph 2 above. (C) "Development Regulations" is defined in paragraph 4 below. (D) The "Owner's Land" is defined in recital A above. (E) "Public Improvements" means the following types of public infrastructure serving the Development: (i) Public sewer improvements. (ii) Public water improvements. (iii) Public transportation improvements. (iv) Public drainage improvements. (F) "Public Improvement Costs" means all costs, expenses, fees, transaction privi- lege taxes and charges actually incurred and paid by or on behalf of the Owner be- fore the 2nd Anniversary Date of this Agreement to contractors, architects, engineers, surveyors, governmental agencies, other professionals and consultants, and other third parties for materials, labor, planning, design, engineering, surveying, site ex- cavation and preparation, governmental permits and payments, payment and per- formance bonds, other professional services, and all other costs and expenses related or incidental to and reasonably necessary for, the acquisition, improvement, con- struction, 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. (G) "Reimbursement Account" means a separate account within the Towri s General Fund or accounted for by an appropriate book or ledger entry designation for the purpose of making Reimbursement Payments (see paragraph 10 below) (H) "Reimbursement Payments" is defined in paragraph 10 below. Exhibit A- Resolution 2013096 CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC -3- (I) "Sales Tax Revenues" means that portion of the Towri s transaction privilege taxes (currently 2%) generated from the following activities occurring within the Development: (i) Amusements, exhibitions and similar activities pursuant to Section 8-410 of the Marana Tax Code. (ii) Hotels pursuant to Section 8-444 of the Marana Tax Code. (iii) Rentals pursuant to Section 8-445 of the Marana Tax Code. (iv) Restaurants and bars pursuant to Section 8-455 of the Marana Tax Code. (v) Retail sales pursuant to Section 8-460 of the Marana Tax Code. References to sections of the existing Marana Tax Code shall include correspond- ing sections of successor codes. 4. Development regulations. The Development shall be governed by the underlying zoning or land use designation, the Continental Ranch Specific Plan, and standards for the Owner's Land. The Marana Development Code, including the written rules, regula- tions, 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 shall apply to the extent not covered by this Agreement. In the event of any express conflict, the terms of the Marana Development Code shall control over this Agreement as to any zoning or other legislative matter, and this Agreement shall control over the Marana Development Code as to any administrative or procedural matter. 5. Development review. The Development 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 Development. Upon the Owner'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. 6. Public improvements construction and reimbursement. As a condition precedent to re- ceiving Reimbursement Payments under paragraph 10 of this Agreement, and not as a separate contractual obligation, the Owner 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: (A) Design and construct the Public Improvements; and (B) Pay all Public Improvement Costs as they become due. 7. Reimbursement amount. The Town shall make Reimbursement Payments to the Owner for the Owner's Public Improvement Costs constructed and paid for within two years of the Effective Date of this Agreement. The Town shall not make Reimbursement Payments to the Owner for Public Improvement Costs which are constructed or paid Exhibit A- Resolution 2013096 CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC -4- for after the 2nd anniversary of the Effective Date of this Agreement. The Owner shall submit to the Town a quarterly statement showing the actual construction costs in- curred and contributions paid or credits received to date for the Public Improvements. The Owner shall provide the Town with invoices or other backup information reasona- bly requested by the Town to confirm the accuracy of the Owner's quarterly statennent of costs and contributions or credits. 8. Reimbursement account. The Town shall deposit into the Reimbursement Account 45% of the Sales Tax Revenues (see paragraph 3(I) above) as they are received from the Arizona Department of Revenue, beginning with the first such revenues generated from the Development and ending upon the expiration of this Agreement. Funds in the Re- imbursement Account shall be reimbursed to the Owner pursuant to paragraph 10 below. 9. No reimbursement out of Construction Sales Tax Revenues. No portion of any reim- bursement under this Agreement shall consist of Construction Sales Tax Revenues (see paragraph 3(A) above). 10. Reimbursement Payments. The Town shall pay to the Owner within the first 45 days of each calendar quarter all funds in the Reimbursement Account ("Reimburse- ment Payments"), beginning the first calendar quarter after the Towri s receipt of Sales Tax Revenues (see paragraph 3(I) above) generated by the Development. Any funds accrued in the Reimbursement Account but not yet disbursed to the Owner upon the expiration of this Agreement shall be paid to the Owner within 30 days after the expira- tion of this Agreement. 11. Owner audit. Not more than once each calendar year, the Owner 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. The Owner audit authorized by this paragraph shall be subject to all applicable laws that may prohibit or limit the dissemination or use of transaction privilege tax and related information. Before the Owner audit occurs, the Owner shall obtain and provide to the Town written waivers of confidentiality suffi- cient to satisfy the requirements of Arizona Revised Statutes � 42-2003(A)(6) from each taxpayer whose sales tax returns and other financial records are provided by the Town in connection with the audit. 12. Annual report. Within 45 days following the end of each Town fiscal year, the Town shall deliver to the Owner a report 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. The report shall be restricted to information that may be released by the Town without violating applicable laws that may prohibit or limit the dissemination or use of transaction privilege tax and related information. The report will not contain information capable of identifying confidential information of any particular taxpayer unless and until the Owner has obtained and provided to the Town written waivers of confidentiality sufficient to satisfy the re- Exhibit A- Resolution 2013096 CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC -5- quirements of Arizona Revised Statutes � 42-2003(A)(6) from each taxpayer whose confidential information is revealed in the report. 13. Limitations. During the Term of this Agreement, the Town shall not enter into any agreement or transaction which impairs the rights of the Owner under this Agree- ment, 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. 14. 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, the Owner shall request each such business to separately report transaction privilege taxes for transactions at its business located in the Development. The Owner 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 reason- able estimate of the Sales Tax Revenues derived from the Development based on all information available to the Town, including information provided by the Owner, and the good faith certification by the Towri s Finance Director shall be considered final and binding upon the Owner. The final certification of the Towri 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. 15. Town review and approval of plans. Except as expressly provided in this Agree- ment, the development and construction of the Public Improvements is subject to the Towri s normal plan submittal, review and approval procedures and construction in- spection requirements. 16. Development impact fees. Nothing in this Agreement shall be construed as a waiver or reduction of development impact fees properly adopted by the Town pursuant to A.R.S. � 9-463.05 and applicable to the Development. 17. Cooperation and alternative dispute resolution. (A) Appointment of representatives. To further the commitment of the Parties to co- operate in the progress of the Development, the Town and the Owner each shall des- ignate and appoint a representative to act as a liaison between the Town and its var- ious departments and the Owner. The initial representative for the Town (the "Town Representative") shall be the Town Manager, and the initial representative for the Owner shall be Greg Wexler or a replacement to be selected by the Owner. The rep- resentatives shall be available at all reasonable times to discuss and review the per- formance of the Parties and the Development. (B) Non-performance; remedies. If either Party does not perform under this Agree- ment (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 18 below to the Non- Exhibit A- Resolution 2013-096 CONTINEN'TAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC -6- 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) 20 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) 30 days from the date of the notice to cure the non-performance if ac- tion 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 paragraph. 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's devel- opment and improvement work, once implementation of this Agreement has begun, money damages and remedies at law will likely be inadequate and that specific per- formance 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, reme- dies, or causes of action that either Party may have at law or in equity. (C) Mediation. If there is a dispute under this Agreement which the Parties cannot resolve between themselves, the Parties agree that there shall be a 45-day moratori- um on arbitration during which time the Parties agree to attempt to settle the dis- pute by nonbinding mediation before commencement of arbitration. The mediation shall be held under the commercial mediation rules of the American Arbitration As- sociation. The matter in dispute shall be submitted to a mediator mutually selected by the Owner and the Town. If the Parties cannot agree upon the selection of a me- diator within seven days, then within three days thereafter the Town and the Owner shall request the presiding judge of the Superior Court in and for the County of Pi- ma, 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. The results of the mediation shall be nonbinding on the Parties, and any Party shall be free to initiate arbitration after the moratori- um. (D) Arbitration. After mediation, as provided for in this paragraph 17, any dis- pute, controversy, claim or cause of action arising out of or relating to this Agree- ment shall be settled by submission of the matter by both Parties to binding arbitra- tion in accordance with the rules of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. � 12-501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction. 18. Notices. All notices, requests and other communications under this Agreement shall be given in writing and either (i) personally served on the party to whom it is Exhibit A- Resolution 2013-096 CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC -7- given, or (ii) mailed by registered or certified mail, postage prepaid, return receipt re- quested, or (iii) sent by private overnight courier such as Federal Express or Airborne, or (iv) transmitted by facsimile (provided that a confirming copy of the facsimile trans- mission is mailed on the date of such transmission), addressed as follows: If to the Town: TOWN OF MARANA 11555 W. Civic Center Drive, Bldg. A3 Marana, Arizona 85653-7006 Tel (520) 382-1900 Fax (520) 382-1901 If to the OWNER: CONTINENTAL RANCH DEVELOPMENT, LLC 6088 W. Arizona Pavilions Dr. Tucson, AZ 85743-7482 Attention: Greg Wexler Telephone: (520) 744-8500 All notices shall be deemed given when delivered or transmitted by facsimile or, if mailed as provided above, on the second day after the day of mailing, and if sent by overnight courier, on the next day after the date of deposit with the courier. Any party may change its address for the receipt of notices at any time by giving written notice thereof to the other parties in accordance with the terms of this section. The inability to deliver notice because of a changed address of which no notice was given, or rejection or other refusal to accept any notice, shall be deemed to be the effective receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. 19. Miscellaneous. (A) This Agreement may not be modified except in a writing signed by the Par- ties. (B) Time is of the essence of this Agreement. (C) This Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona, and any lawsuit to enforce any provision of this Agreement or to obtain any remedy with respect to this Agreement shall be brought in the Pima County Superior Court, and for this purpose the Parties expressly and irrevocably consent to the jurisdiction of the Pima County Superior Court. (D) If either of the Parties fails to perform any of its obligations under this Agreement or if a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the defaulting party or the party not prevailing in the dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party in enforcing or establishing its rights under this Agreement, including, without limitation, court costs and reasonable attorneys' fees. Exhibit A- Resolution 2013096 CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 226 PMFJC -g- (E) This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original and all of which, taken together, shall constitute one and the same agreement. (F) This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors in interest and assigns; provided, however, that no assignment of this Agreement shall in any way relieve the assignor of its obligations under this Agreement. (G) This Agreement is subject to A.R.S. � 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the last date set forth below their respective signatures. THE ��TOWN��: TOWN OF MARANA, an Arizona municipal corporation The ��OWNER'�: GONTINENTAL RANCH DEVELOPMENT LLC an Arizona limited liability company : Ed Honea, Mayor Date: ATTEST: Jocelyn C. Bronson, Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney STATE OF ARIZONA � SS County of Pima ) : Mark Schlossberg, Manager Date: The foregoing instrument was acknowledged before me on by Mark Schlossberg Manager of CONTINENTAL RANCH DEVELOPMENT LLC, an Arizona limited liability company, on behalf of the LLC. (Seal) Notary Public Exhibit A- Resolution 2013-096 CONTINENTAL RANCH PARCEL 60 DEVELOPMENT AGREEMENT 10/8/2013 2:26 PMFJC -9- EXHIBITS Exhibit A Depiction of the "Owner's Land" Exhibit A- Resolution 2013096 CONTINENTAL RANCH PARCEL 60 DEVELOPMEN'I' AGREEMENT 10/8/2013 2:26 PMFJC 10 Z N M N c� Z O � N M 2 N M N N cq II Z N M 111-7-10 W 111-7-0 W 0 140 280 420 m. This map is a user generated static output from an Intemet mapping site and is for generel reference only. Data layers that appear on #�is map may or may not be accurate, curcent, or othervvise reliable. THIS MAP IS NOT TO BE USED FOR NAVIGATION. 111-6-50 W w N N W � 2 N N W O Z w N N � N Z Legend —t �Ralt[aad� � Rin�I�CourtyAddresse3 ksidrasses --- G:AP.Canal *�^ Washas;c Major � S"ff.@SYS`-� M8j0f ^ �' .�f88tR, • A���.. �m:��l Bulkifngs. [� Percels Q MaranaAtport � Ma�ana Town Bauntlaiy Llne�. �, �larana Tawn Lkrtlts W N W b Z N � Scale:1:4,894 Exhibit A to Continental Ranch Parcel 60 Development Agreement CR Parce160 111-7-t0 W 111-7-0 W 111-6-50 W