HomeMy WebLinkAboutResolution 2016-037 Authorizing the Mayor to execute Marana Spectrum Reconciliation AgreementMARANA RESOLUTION NO. 2016 -037
RELATING 'TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE THE MARANA SPECTRUM RECONCILIATION AGREEMENT FOR THE
MARANA CENTER DEVELOPMENT PROJECT
WHEREAS VP Marana 160, LLC and the Town of Marana are parties to the Second
Amendment to Marana Spectrum Development Agreement recorded in the office of the Recorder
of Pima County, Arizona, on May 15, 2014, at Sequence 20 141350543 (the "Second DA
Amendment "); and
WHEREAS the Second DA Amendment and the agreements it amends (collectively the
"Marana Center Development Agreements ") facilitate the development of the Marana Center
development project ( "Marana Center "), formerly known as Marana Spectrum, located in
Marana, Arizona, on the land depicted on the Marana Center Final Block Plat recorded in the
office of the Recorder of Pima County, Arizona, on August 22, 2014, at Sequence 20142340180;
and
WHEREAS VP Marana 160, LLC and the Town of Marana desire to clarify and
reconcile certain of their rights and obligations under the Marana Center Development
Agreements; and
WHEREAS the Mayor and Council find the Marana Spectrum. Reconciliation Agreement
to be in the best interest of the Town and its citizens.
NOW, 11 FHEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA., ARIZONA, AS FOLLOWS-.
SECTION 1. The Town hereby approves and authorizes the Mayor to execute the Marana
Spectrum Reconciliation Agreement in the form attached to this resolution as Exhibit A, for and
on behalf of the Town of Marana.
SECTION 2. The various Town officers and employees are authorized and directed to
perform all acts necessary or desirable to give effect to this resolution.
00046282DOCX 11
Marana Resolution No. 2016 -037 4/6/20 2:56 I'M FJC~
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 19th da of April, 2016.
Ma EdHoi4ca
06011639
APPROVED AS TO FORM:
o e
l C. onson, Town Clerk Fr k x
? C id Town 7 ttorne
J
I
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00046282.DOCX /I
Marana Resolution No. 2016-037 4/6/2016 2:56 PM FJC
MARANA SPECTRUM RECONCILIATION AGREEMENT
TOWN OF MARANA, ARIZONA
THIS MARANA SPECTRUM RECONCILIATION AGREEMENT (this "Agreement ") is made by and
between the TowN OF MARANA (the "Town "), an Arizona municipal corporation, and VP MARANA
160, LLC ( "VP Marana "), an Arizona limited liability company. The Town and VP Marana are
collectively referred to in this Agreement as the "Parties," either of which is sometimes
individually referred to as a "Party."
RECITALS
A. KIMCO MARANA L.P. ("Kimco"), a Delaware limited partnership, formerly known as
KIMCo BARCLAY MARANA, L.P., and the Town were parties to the MARANA SPECTRUM
DEVELOPMENT AGREEMENT dated December 22, 2007 (the "original DA "), recorded with Marana
Resolution No. 2007227 (its authorizing resolution) at Docket 13211, Page 951, in the records of
the Recorder of Pima County, Arizona, on December 28, 2007.
B. K.im.co and the Town were parties to the FIRST AMENDMENT To MARANA SPECTRUM
DEVELOPMENT AGREEMENT dated August 17, 2010 (the "First DA Amendment "), recorded at
Docket 13 881, Page 490, in the records of the Recorder of Pima County, Arizona, on August 26,
2010.
C. Kimco assigned and VP Marana assumed all K.imco's rights and responsibilities under the
Original DA and the First DA Amendment pursuant to the ASSIGNMENT AND ASSUMPTION OF
MARANA SPECTRUM DEVELOPMENT AGREEMENT dated December 9, 2013 (the
"DA Assignment "), recorded at Sequence No. 20 133460261 in the records of the Recorder of
Pima County, Arizona, on December 12, 2013.
D. The Town approved and consented to the DA Assignment on December 3, 2013, by the
adoption of Marana Resolution No. 2013 -110.
E. The Town and VP Marana were parties to the SECOND AMENDMENT To MARANA SPECTRUM
DEVELOPMENT AGREEMENT, recorded in the office of the Recorder of Pima County, Arizona, on
May 15, 2014, at Sequence 201413 50543 (the "Second DA Amendment ").
F. The original DA as modified by the First DA Amendment and by the Second DA
Amendment (collectively the "Marana Center Development Agreements ") facilitate the
development of the Marana Center development project, formerly known as Marana Spectrum,
located in Marana, Arizona, on the land legally described in Exhibit A to the Second DA
Amendment and depicted on the Marana Center Final Block Plat recorded in the office of the
Recorder of Pima County, Arizona, on August 22, 2014, at Sequence 20 142340 180, referred to in
this Agreement as "Marana Center."
00046049.DOCX 12 MARANA SPECTRum RECONCILIATION AGREEMENT 3/28/2416 2:25 I'M FJC
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G. Article 6 of the Original DA requires the Town to reimburse VP Marana 45% of the Sales
Tax Revenues from Marana Center as they are received from the Arizona Department of Revenue.
H. VP Marana no longer holds title to Marana Center, but retains rights and obligations under
the Marana Center Development Agreements, including the right to receive reimbursements under
Article 6 of the Original DA.
I. The Parties desire to clarify and reconcile certain of their rights and obligations under the
Marana Center Development Agreements.
A.GRE'L
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and
agreements set forth in this Agreement, the Parties hereby agree as follows:
1. Definition of terms Except as expressly modified by this Agreement, words and phrases
used in this Agreement shall have the same definitions as in the Marana Center Development
Agreements.
2. Total Reimbursement Amount as of October 1 2015. As of October 1, 2015, the Total
Reimbursement Amount owed by the Town to VP Marana was $17,868,559.85, as more
specifically detailed in the "Marana Center Public Improvements Reimbursement Request"
document attached to and incorporated in this Agreement as Exhibit A.
3. Interest accrual date Interest, set at the rate of 5% per annum (see paragraph 1.3. 10 of the
Original DA as amended by paragraph 2 of the First DA Amendment), shall accrue on the Total
Reimbursement Amount from and after October 1, 2015. This modifies the interest accrual date
established by paragraph 6.1.2 of the Original DA as amended by paragraph 6 of the First DA
Amendment.
4. First Reimbursement Pa ment. The Town made the first Reimbursement Payment by Check
Number 00218126 dated February 12, 2016, in the amount of $222,807.70 payable to "Vintage
Partners LLC," consisting of 45% of the Sales Tax Revenues from Marana Center for the months
of October and November, 2015. VP Marana acknowledges that it received the payment.
5. Second Reimbursement Payment, The Town shall pay VP Marana the second
Reimbursement Payment within 30 days after the Town receives sales tax proceeds from the State
of Arizona for the month of March 2016, and the second Reimbursement Payment shall include
reimbursement of 45% of the Sales Tax Revenues from Marana Center for the months of
December 2015, January 2016, February 2016, and March 2016.
6. Remaining Reimbursement Payments. From and after the second Reimbursement Payment
described in paragraph 5 above, Reimbursement Payments shall consist of 45% of the Sales Tax
Revenues from Marana Center for the entire prior calendar quarter and shall be made within 30
days after the Town's receipt from the State of Arizona of sales tax proceeds for the last month of
that calendar quarter.
00046049.DOCX 12 MARANA SPEC RUm RECONCILIATION ION AG'RETMENT 3/28/2016 2:25 1 F1C
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7. How Reimbursement Payments are ap lied. Reimbursement Payments shall be applied first
to accrued interest and second to principal. The following describes the calculation of Interest
accrual under the Marana Center Development Agreements as of the date of this Agreement.
Notwithstanding other interpretations of the reimbursement calculation that might be made under
the Marana Center Development Agreements, the Parties acknowledge that the following table
sets forth the correct calculation and application of accruals and Interest to date:
Descript
Debits
Payments
Balance
Opeiihig Reimbursement Amount
$1708,559.85
$17
January 1, 2016 Interest (Balance x 0.0125)
$223,357.00
$18,091
Februaa 12, 2016 Reimbursement Payment
$222
$17,869,109.15
A ril 1, 2016 Interest (Balance x 0.01.25)
$223,363.86
$18
8. Additional Public Improvement Costs. In accordance with the last two sentences of
paragraph 6.1.2 of the original DA, VP Marana shall submit statements no more often than
quarterly, showing the actual construction costs incurred and contributions paid for any additional
Public Improvement Costs that are subject to reimbursement by the Town under the Marana Center
Development Agreements. The Town Engineer shall review each statement and shall promptly
notify VP Marana of any costs or contributions the Town Engineer finds are not subject to
reimbursement. Approved costs and contributions shall be added to the Total Reimbursement
Amount as of the date the Town received the statement.
9. VP Marana's Representative. VP Marana's representative for purposes of Article 7
( "Cooperation and Alternative Dispute Resolution ") of the original DA shall be David C. Scholl.
10. Term This Agreement shall become effective upon its execution by all Parties and, unless
sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall
thereafter be void for all purposes on the termination date set forth in paragraph I I of the First DA
Amendment.
11. Counterparts This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same "Instrument.
The signature pages from one or more counterparts may be removed from the counterparts and
attached to a single instrument so that the signatures of all Parties may be physically attached to a
single document.
12. Interpretation This Agreement has been negotiated by the Town and VP Marana, 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.
13. Recordation The Town shall record this Agreement in the office of the Pima County
Recorder after it has been executed by the Parties.
14. 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.
00046049.I)OCX 12 MARANA SPECTRUM RECONCILIATION A[VREEMENi" 3/28/2016 2:25 PM F lC
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15. Effect on the Marana Center Development A Except to the extent modified,
clarified, and reconciled b this A the Marana Center Development A remain
in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this A as of the last date set forth
below their respective si
THE "TOWN ":
THE TOWN OF MARANA, an Arizona municipal
corporation
B
Ed Honey l Ma
Date: �— / 9— 2
ATTEST:
ocel C. ronson, Clerk
APPROVED-AS To FORM,'-
F,/ank C A�tdr
STATEbi`ARIZONA
"VP MARANA"'.
VP MARANA 160, LLC, an Arizona limited
liabilit compan
B VINTAGE PARTNERS, LLC, an Arizona
limited liabilit compan its Mana
B SCHOLL PARTNERS LLC, an Arizona
limited liabilit compan authorized
Member
B y: 00�
David C. Scholl, Mana
4 ss
Count of (,Vol L pa--)-1
The fore 'instrument was acknowled before me on 'V1 t David C.
Scholl, Mana of SCHOLL PARTNERS LLC, an Arizona limited liabilit compan authorized
Member Of VINTAGE PARTNERS LLC an Arizona limited liabilit com,
5 1 1 'A an y , Mana of
VP MARANA 160 LLC an Arizona I*m*ted.0 bi lf 9 �� e LC.
1 1 co on bel4K 5 9 14
( Seal )
its
ki.,'-UNT I
c jate of Arizona
%1A�-,'J-,0pA COUNTY
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NovzMbef -12. 2017
00046049DOCX /2 MARANA SPECTRUM RECONCILIATION AGREEMENT 3/28/2016 2:25 PM FJC
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EXHIBIT A TO MARANA SPECTRUM RECONCILIATION AGREEMENT
VINTAGE
P A R T N E R S
Marana Center
Public Improvements
Reimbursement Request
MARANA
=/
Pha I Infrastructure
EXHIBIT A TO MARANA. SPECTRUM RECONCILIATION AGREEMENT
TABLE of CONTENTS
ReimbursementRequest r+ rraaaaaaaarrrrrraaarrrrraaaaaaarrrrrraraaar■ rrraaaarrrrraaaarrrrraaarrrrrrraarrrraaaarrrr Section I
TownDevelopment Agreement rrr■ rrraaarrrrrraaararrrrrrraaarrrrraaaaaarrrrraaarrrraaaaararrrraararraraarrrrrr Section 2
CMARSelection arrrrraaaarrrrarrrraaaaaarrarrraraarrrrraaaaarrrrrrraaaarrrrraaaarrrrrrraarrrrraaaaarrarrra Section 3 (on Disc)
CIVIAR Contract & Change OrdersarrrrararaaaarrrrrarararrrrararrraarrrraaraM■ rraaaarrr ■rraaarrr rrraaar r raaaaarr Section 4
GMPfor Phase I Infrastructure rrraraaa• aarrrrrraaaarr+ r+• aaarrrrrrrraararrraraaarrrrrrraaarrr +raaarrr►aaaarrrrrr Section 5
CMAR Pay Applications & Lien Section 6 (on Disc)
Soft Costs Back -Up Information •• aarrrrr+■ raarr++ araarrarrrrrraarrrrrraraarrrrrrraarrrrr +aaaararrr Section 7 (on Disc)
Non -CMAR Construction Costs Back-Up Section 8 (on Disc)
EXHIBIT A TO MARANA SPECTRUM RECONCILIATION AGREEMENT
Section 1:
Summary of Re m bu rsement R
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. Peaks ]: Improvements
Twin
$4,467,281.33
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A..-
L
r Surve
Civil Engineering and
� g g Y
$942,609.05
Environmental
$456,524.59
Landscape Architecture & Planning
$21,875.00
Legal
$27,318-00
Miscellaneous Costs
$58,190.70
Sub Total =
$1,506,57.7,34
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stirs :•':.�s.- ;..:,.�- : _.�.r•:- ::�i7':: -t tai• :..;.:; -r:
Archaeology
$143,018.20
Dry Utility Mains Relocations
$171,975.33
Engin of Record - Wood Patel
$261,146.26
Other
$389,162.36
Sub Total =
$965,302.15
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101
4: :•i::
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t- :•=��: �:':� >; -.,. A,
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.,: m:.:.1
Drai nage Syste
$2,375,542.01
Drainage System 2
$1,661,928.01
Roa dway (includes Storm Drain, Traffic Signals, Landscape)
$2,730,275.55
Street Lighting
$1.55,350.50
Public Sewer
$494,869.76
Public Water (Phase 1)
$677,322.86
Electrical / Dry Utility Conduits
$3 14 , 862 . 50
Specific Jobsite Conditions
$361,1.29.14
Bond / Tax
$744,651.43
General Job Expenses
$167,971.87
Con tractor's Fee
$1,245,555.40
Sub Total
$10,929,459.03
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it :=
TOTAL L
$17,
EXHIBIT A TO MARANA SPECTRUM RECONCILIATION AGREEMENT
Proration Methods Used
Because there were certain private development efforts completed at the same time as the
design and construction of the public infrastructure, it was necessary to develop methods of
prorating some of the costs that benefited both. In discussions with the Town, three methods
of proration were developed and agreed to:
1. Proration based on the resulting area of the Town Right -of -way compared to the private
developable area of Marana Center,
2. Proration based on the direct CMAR construction costs of the private development
related items compared to the items associated with the Public Infrastructure,
3. Proration based on a simple 50 / 50 split.
The following discussion describes the methods and lists the items that were prorated by each
method.
I. By Area Ratio
The table below shows the calculation for proration based on area which results in the
Town property dedicated on the Final Block Plat being 10.9% of the total project area.
The cost items that used this proration in the detailed reimbursable costs analysis
spreadsheet include:
Final Plat and associated Review fees
• Aerial Topographic Mapping
• Phase I Environmental Site Assessment
• Archaeology Data Recovery
• Fencing around Archaeology Areas
2. By CMAR Ratio
Section 5 "GMP for Phase I Infrastructure" includes the final spreadsheet computation
for all the costs included in the Borderland CMAR GMP #1 under the last tab titled "TOM
EXHIBIT A TO MARANA SPECTRUM RECONCILIATION AGREEMENT
Reimbursement Calculation ". The spreadsheet prorates several of the overhead related
items using the ratio of Private to Public Direct Costs as follows:
Direct Private Improvements:
Private Grading $105,359.40
Entry Monuments $249,357.30
Private portions of Specific Jobsite Conditions $23,636.20
Total = $378,352.90
Divided by
Total Direct Improvements:
Tota I Costs $11,400,905.89
Minus
Total Indirect Costs $
Result - $9,149,633.23
Which gives 4.135°
The Indirect CMAR cost items that were prorated using this version are highlighted in
blue in the aforementioned spreadsheet and fall within the Sections
XI. Bond /Tax
XII. General Job Expenses
XIII. Contractor's Fee & Overhead.
The cost items that used this proration in the detailed reimbursable costs analysis
spreadsheet include:
0 Reprographics & Deliveries
3. By 50150 Split
Several items related to the Landscape & Irrigation plans were split 50 / 50 based on
discussions with Town Engineering staff. The actual Streetscape Plans included the
landscaping to be installed in the Town Right -of --Way and the landscaping and entry
monuments at the major entries to the project that fall on private property. The cost
items related to the Landscape & Irrigation plans that used this proration in the detailed
reimbursable costs analysis spreadsheet include:
■ Schematic Design
• Town of Marana Review Fees
EXHIBIT A TO MARANA SPECTRUM RECONCILIATION AGREEMENT
Detailed Reimbursable Costs Analysis
The following gives a complete summary of the costs Vintage Partners realized in the design
and construction of the Phase I Infrastructure including the break out of the portions associated
with the private development versus the public infrastructure related to the reimbursement
request. These pages are from the actual Excel spreadsheet titled "20115 -12 -21 Reimbursement
Costs Summary.xlsx" is included on the disk at the back of the binder. A further breakdown of
detail for the CIVIAR costs is included in Section 5 "GMP for Phase I Infrastructure ".