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Home My WebLink AboutResolution 2013-110 assignment of owner/developer rights from marana spectrum agreement to vp marana 160MARANA RESOLUTION N0. 2013-110 RELATING TO DEVELOPMENT; APPROVING THE ASSIGNMENT OF OWNER/DEVELOPER RIGHTS AND RESPONSIBILITIES UNDER THE MARANA SPECTRUM DEVELOPMENT AGREEMENT TO VP MARANA 160, LLC WHEREAS Kimco Marana, L.P., a Delaware limited partnership formerly known as Kimco Barclay Marana, L.P., is the Owner/Developer under the Marana Spectrum Development Agreement recorded on December 28, 2007 with its authorizing resolution (Marana Resolution No. 2007-229) in the office of the Pima County Recorder at Docket 13211 Page 951, as amended by the First Amendment to Marana Spectrum Development Agreement recorded on August 26, 2010 in the office of the Pima County Recorder at Docket 13881 Page 490 (collectively, the "Marana Spectrum Development Agreement"); and WHEREAS Kimco Marana has entered into a contract to sell the land which is the subject of the Marana Spectrum Development Agreement to VP Marana 160, LLC, an Arizona limited liability company, which is currently scheduled to close on December 12, 2013; and WHEREAS Kimco Marana proposes to assign all of its rights and responsibilities under the Marana Spectrum Development Agreement to VP Marana 160, including without limitation the assignment of the Owner/Developer's right to receive Reimbursement Payments (as defined in the Marana Spectrum Development Agreement); and WHEREAS the Mayor and Council find the assignment to be in the best interest of the Town and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Town hereby approves the assignment of all of the Owner/Developer rights and responsibilities under the Marana Spectrum Development Agreement to VP Marana 160, LLC, including without limitation the assignment of the Owner/Developer's right to receive Reimbursement Payments. SECTION 2. The Mayor is hereby authorized and directed to execute, and the Town Clerk is hereby authorized and directed to attest to, any and all necessary documentation of the assignment of rights, including without limitation the Assignment and Assumption of Marana Spectrum Development Agreement in substantially the form attached to and incorporated by this reference in this Resolution as Exhibit A, for and on behalf of the Town of Marana. Muana Resolution No. 2013-110 - 1- 11/25/2013 9:46 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 3 dav of December, 2013. �� r�^ ;rf� �� a � � � Mayor Ed �-Ionea ATTEST: J celyn C ronson, Town Clerk Mazana Resolution No. 2013-110 - 2- 11/25/2013 9:46 AM FJC APPROVED AS TO FORM: � When recorded return to: Vintage Partners, LLC 2502 E. Camelback Road, Suite 214 Phoenix, Arizona 85016 Attention: David Scholl ASSIGNMENT AND ASSUMPTION OF MARANA SPECTRUM DEVELOPMENT AGREEMENT This Assignment and Assumption of Marana Spectrum Development Agreement ("Assi ment") is made as of this day of , 201_ ("Effective Date"), by and between Kimco Marana, L.P., f/k/a Kimco Barclay Marana, L.P., a Delaware limited partnership ("Assignor"), and VP Marana 160, LLC, an Arizona limited liability company ("Assignee"), and is based on the following facts: RECITALS A. Assignor as "Seller," and Assignee, as"Buyer," have entered into that certain Contract of Sale dated as of May 16, 2013 (as amended, the "Purchase A�reement"). Pursuant to the Purchase Agreement, Seller is concurrently herewith selling and conveying to Assignee, and Assignee is concurrently herewith purchasing from Assignor, certain real property located in Pima County, Arizona described in Exhibit A attached hereto (the "Land"), on the terms and conditions set forth in the Purchase Agreement. B. The Land is subject to that certain Marana Spectrum Development Agreement and First Amendment to Marana Spectrum Development Agreement (collectively, the "Development Agreement") by and between Assignor and the Town of Marana ("Town") and originally recorded in the Official Records of Pima County, Arizona at Docket 13211 Page 951 (Sequence No.20072500263, as an exhibit to Town of Marana Resolution No. 2007-229), and at Docket 13881 Page 490 (Sequence No. 20101650176), respectively. C. Assignor holds certain rights as the "Owner/Developer" under the Development Agreement. D. Assignor desires to transfer, assign, and convey to Assignee, and Assignee desires to receive and assume, all of Assignor's rights in, to, and under the Development Agreement, including without limitation Assignor's rights as Owner/Developer under the Development Agreement, and Assignors rights to any Reimbursement Payments on the terms and conditions set forth below. r� ASSIGNMENT AND ASSUMPTION NOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, and in further consideration of the foregoing and each act taken by the parties hereto, it is hereby agreed as follows: 1. Defined Terms. Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the Agreement. 2. Assignment. Assignor hereby assigns, conveys, sets over and transfer unto Assignee, all of the rights and obligations of Assignor under the Development Agreement, including without limitation its rights and obligations as Owner/Developer and the rights to all Reimbursement Accounts, Reimbursement Payments and any other payments due Owner/Developer under the Development Agreement. 3. Assumption. Assignee hereby accepts this Assignment and assumes all duties and obligations of Assignor to be performed, paid, or complied with under or with respect to the Developer under the Development Agreement arising from and after the Effective Date. 4. Indemnitv. Assignee agrees to indemnify, defend and hold Assignor harmless for, from and against any and all actions, suits, proceedings, liability, loss or damage, including without limitation actual attorneys' fees and costs (collectively "Claims") that Assignor may incur attributable to or arising out of any alleged breach of the Agreement occurring or alleged to have occurred on or subsequent to the date of this Assignment. Assignor agrees to indemnify, defend and hold Assignee harmless for, from and against any and all Claims that Assignee may incur attributable to or arising out of any alleged breach of the Agreement occurring or alleged to have occurred before the date of this Assignment. 5. Representation and WarrantX. Assignor represents and warrants that it is the owner of the assigned rights, Assignor has not previously assigned, transferred, encumbered or granted a security interest in all of such rights and Assignor has the power and authority to transfer such rights, subject to any limita.tions on the ability of Assignor to assign such rights as set forth in the Development Agreement. 6. Consents. The parties hereby agree to use commercially reasonably, good faith efforts to obtain, without cost or liability to the other parties, the written consent from the Town to this Assignment. Failure of the parties to obtain the consent of the Town shall not invalidate the effectiveness of this Assignment as between Assignor and Assignee. 7. Successors and Assi�ns. This Assignment shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. 8. Further Assurances. The parties agree to perform, execute, and/or deliver or cause to be performed, executed, and/or delivered any and all such further acts, instruments, and assurances as may be reasonably required to effectuate the assignment and assumption contemplated herein. 2 9. Governin� Law. This Assignment shall be governed by and construed in accordance with the laws of the State of Arizona. 10. Counterparts. This Assignment may be executed in one or more counterparts, each of which shall be deemed an original and all of which combined shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Assignment as of the date set forth above. [signatures appear on next pages] � ASSIGNOR: Kimco Marana, L.P., a Delaware limited partnership C B its: STATE OF ) ) ss. County of ) The foregoing instrument was acknowledged before me, the undersigned Notary Public, this day of , 20_, by , the of Kimco Barclay, L.P., a Delaware limited partnership for and on behalf thereof. My commission expires: Notary Public � ASSIGNEE: VP Marana 160, LLC, an Arizona limited liability company By: Vintage Partners, LLC, an Arizona limited liability company Its: Manager By: Edward & Company, LLC, an Arizona limited liability company Its: Administrative Agent I� Mark E. Ortman, Jr., Its Manager STATE OF ARIZONA ) ) ss. County of Maricopa ) The foregoing instrument was acknowledged before me, the undersigned Notary Public, this day of , 2013, by Mark E. Ortman, Jr., the Manager of Edward & Company, LLC, an Arizona limited liability company, as Manager of Vintage Partners, LLC, an Arizona limited liability company, as Manager of VP Marana 160, LLC, an Arizona limited liability company, for and on behalf thereof. Notary Public My commission expires: � CONSENT TO ASSIGNMENT Pursuant to Section 8.11 of the Development Agreement, the undersigned hereby acknowledges and consents to the Assignment to which this Consent to Assignment is attached, including the assignment of all rights to Reimbursement Accounts and Reimbursement Payments to Assignee. TOWN OF MARANA, an Arizona municipal corporation G�-�i�� ,r��`'�""'.. � � Mayor Ed Honea ATTEST: AS TO FORM: �� _ / �. �..�� i� �' _ _ L�%��' �� - �: � � • � � STATE OF ARIZONA ) ) ss. County of Pima ) The foregoing instrument was acknowledged before me, the undersigned Notary Public, this ..� day of (� e�� i» {ae r , 20 /.� , by Ed Honea, the Mayor of the Town of Marana, Arizona, an Arizona municipal corporation, for and on behalf thereof. . �'� � Not Public NOTARY PUBLIC My co i� s. '�n expir OF ARIZONA E fJ,� �'AUIl� Of Plllla DIANE MANGIAL, My Commisssion Expires March 17, 201b C� r , EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY