HomeMy WebLinkAboutResolution 95-017 entering a development agreement with Transmark for Ina & Meredith RoadsRESOLUTION NO. 95-17
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA,
ARIZONA, ENTERING ONTO A DEVELOPMENT AGREEMENT WITH THE
TRANSMARK COMPANY FOR THE CONSTRUCTION OF A RETAIL CENTER AND
IMPROVEMENTS TO INA ROAD AND MEREDITH ROAD.
WHEREAS, the Transmark Company has indicated its desire to purchase a parcel at the
intersection of Ina and Meredith Roads, and intends to construct a restaurant and other retail
businesses at the site; and
WHEREAS, a condition of the zoning on the parcel in question requires that any "traffic
intensive" land use will require a development agreement providing that the developer will
participate in the installation of a traffic control device and other improvements to the
intersection; and
WHEREAS, the developer intends to construct at least one restaurant at the site, and as
a part of the planning for this development has conducted a traffic study which recommends that
a traffic control device be installed at the intersection; and
WHEREAS, the developer desires to enter into a development agreement providing that
it may construct its uses on the property, and the Town desires to enter into a development
agreement providing limitations on the development of the property and providing that the
developer shall share in the cost of the traffic control device and other improvements to the
intersection; and
WHEREAS, the Marana Planning Commission held a public hearing on the proposed
development agreement on February 22, 1995, and following this public hearing recommended
that the Town Council adopt the proposed development agreement; and
WHEREAS, the Town Council of the town of Marana, Arizona believes that entering
into the development agreement will be in the best interests of the Town.
NOW, THEREFORE, BE IT RESOLVED by the Town of Marana, Arizona that the
Development Agreement attached hereto as Exhibit A is approved and the Mayor and Clerk are
authorized and directed to execute and deliver the Development Agreement on behalf of the
Municipality as provided herein.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona,
this 21st day of March, 1995.
Mayor ORA HA
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APPROVED AS TO FORM:
Daniel J. Hochuli
Town Attorney
Resolution No. 95-17 Page 2 of 2
When recorded, return to:
Daniel J. Ilochuh
3275 W. Ina Road, Suite 109
Tucson, AZ 85741-2152
DEVELOPMENT AGREEMENT
c(OOTN'
THIS DEVELOPMENTAGREEMENT (hereinafter "Agreement") is made as of this _
clay of , 1995, by and between the TOWN OF MARANA, an Arizona
municipal. corporation (hereinafter "Town"), and and TRANSMARK COMPANY, an Arizona
Corporation (hereinafter "Transmark").
WITNESSETH
WHEREAS, Transmark is the developer and has entered into a purchase contract for
certain real property located within the boundaries of the Town, located at the intersection of
Ina Road and Meredith Boulevard, approximately 1.8 acres in size, more particularly set forth
in the legal description attached hereto as "Exhibit A" and on the map attached hereto as
"Exhibit B" (hereinafter the "Property"); and
WHEREAS, the present owner of the Property applied to the Town for a change of
zoning of the Property from "CO Zone" (Commercial Office) to "NC Zone" (Neighborhood
Commercial). A public hearing oil this request for change of zoning was held by the Marana
Planning Commission on November 30, 1994, and the Town Council held a public hearing on
the request on January 3, 1995; and
WHEREAS, at the public hearing before the Town Council, the present owner presented
to the Town Council, through his development consultant, that the site was planned for a "strip
center" type development with no restaurant at the site, except perhaps a small coffee shop type
restaurant located in the strip center; and
WHEREAS, the Planning Commission and Town Council were concerned about the
possibility of a restaurant being constructed at the Property, which would greatly increase the
traffic at the intersection, and thus would likely create a necessity for a traffic light and other
improvements at the intersection; and
WHEREAS, the Town Council determined that the change of zoning should be granted,
with conditions, and the change of zoning was granted by Ordinance No. 95.01 on January 3,
1995, and became effective February 3, 1995; and
WHEREAS, the Property was granted "NC" zoning with the following restrictions:
1. A detailed site plan shall be returned to the Planning Commission for
acceptance and approval.
2. The property owner shall meet all Town Engineer's concerns as outlined in
Exhibit C attached hereto, especially in issues related to the traffic, grading,
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culvert, entrance and other issues that may apply to the approval of the
detailed site plan.
3. The property owner shall comply with any traffic threshold set forth by the
Town Engineer and shall not exceed this figure. At any time the threshold
is exceeded, the property owner shall be required to make improvements to
the public right of way, and a development agreement outlining such
improvements must be entered into between the Town and the property
owner. Any development agreement shall be reviewed and approved by the
Planning Administrator and the Planning Commission, and approved by the
]'own Council before a site plan is approved. _
WHEREAS, 'Transmark intends to purchase the Property and has signed certain
agreements to this effect. If this sale is completed, Transmark intends to construct at least one
restaurant at the Property, with a strong likelihood of one or two traffic -intensive businesses at
the Property; and
WHEREAS, Transmark desires to confirm that it may develop the Property with its
planned uses prior to completing the contract for purchase of the Property, and the Town desires
to be assured that it will receive contributions from Transmark, that the intersection
improvements will be constructed by the developer, and that part of the cost of construction of
the intersection improvements will be paid by Transmark; and
WHEREAS, A.R.S. §9-500.05 authorizes the Town to enter into a development
agreement with any person or entity having an interest in real property providing for the
development of such property and establishing certain development rights therein; and
WHEREAS, The parties understand and acknowledge that this Agreement is a
"Development Agreement" within the meaning of, and entered into pursuant to the terms of,
A.R.S. §9-500.05, and that the terms of this Agreement are binding upon Transmark and the
Town, and their successors and assigns and shall run with the land.
AGREEMENT
NOW, THEREFORE, in reliance upon and for the reasons set forth above and in
consideration of the covenants set forth herein, the parties hereto agree as follows:
The foregoing recitals are hereby acknowledged and incorporated herein and the parties
hereby confirm the accuracy thereof, and said recitals are incorporated herein by this
reference.
2. Tile Property will be developed by Transmark in compliance with the Site Plan attached
hereto as "Exhibit D" (the "Site Plan"), with the buildings to be placed as shown on the
Site Plan and with parking being reserved for the areas indicated. Transmark shall be
entitled to make modifications to the Site Plan subject to the approval of the Marana
Planning Administrator, so long as such modifications do not substantially alter the
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character of the site. It is understood by the Town that Transmark intends to construct,
among other things, one drive-through restaurant at the Property. Acceptance of this
Agreement shall serve to satisfy Condition #1 of Ordinance No. 95.01, which required
Planning Commission acceptance of a detailed site plan.
3. Transmark shall meet all the Town Engineer's concerns as set forth in "Exhibit C" to
this Agreement.
4. The Town agrees that access to the Property from Meredith Boulevard shall be allowed
as set forth on the Site Plan, and the Town accepts the modifications to Meredith
Boulevard as shown on the Site Plan, so long as all such modifications are built in
conformance with plans accepted and approved by the Town, and meet all Town
engineering requirements. It is understood between the parties that any traffic departing
from the Property onto Meredith will be restricted to a right turn only; no traffic leaving
the Property will be allowed to turn North into the existing subdivision, and will be
required to turn South toward Ina Road. All costs and expenses associated to the
improvements to Meredith Boulevard will be paid by Transmark, including but not
limited to planning, engineering, design, construction, utility relocation, etc. The Town
shall not be required to pay any of the costs associated with the improvements to
Meredith Boulevard.
5. Transmark has caused to be conducted, at its sole expense, a traffic study of the
intersection of Meredith Boulevard and Ina Road, and the traffic study has recommended
that a traffic control device and other improvements be installed at the intersection.
6. As part of the development of the Property and contemporaneously therewith, Transmark
agrees to complete certain improvements at its own sole expense. The Town, as
provided hereinafter, will make certain improvements to the intersection at its sole
expense. The allocation of expense for the improvements will be as follows:
a. All improvements required on Meredith Boulevard will be at the sole expense of
Transmark and will be performed contemporaneously with the development of the
Property.
b. All improvements to Ina Road which relate to turning onto Meredith Boulevard
or into the Property, such as turn lanes, curb cuts, median improvements, and the
like, shall be at the sole expense of Transmark.
C. All improvements required on Ina Road which relate to turning from Ina Road
into the shopping center on the South side of Ina Road, and any necessary
improvements at the entry to said shopping center, shall be at the sole expense
of the Town and/or other affected parties.
7. 'Transmark agrees to contribute twenty-five (25%) of the cost of the design and
construction of a traffic signal at the intersection, up to a maximum amount of FORTY
THOUSAND ($40,000.00) DOLLARS, as provided hereinafter. Prior to being issued
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a building permit for any construction at the Property, Transmark shall tender to the
Town the sum of THIRTY THOUSAND ($30,000.00) DOLLARS to secure its
obligation. The Town agrees to construct the traffic signal during the fiscal year
immediately following (i) completion of the traffic study recommending it, and (ii) tender
of the funds from Transmark. If, after construction is completed, the payment made by
Transmark exceeds twenty-five (25%) percent of the actual cost of the design and
construction of the traffic signal, the remainder shall be refunded; if the payment made
by Transmark is less than twenty-five (25%) percent of the cost or the design and
construction of the traffic signal, Transmark shall immediately upon demand tender the
rest of its obligation, up to the maximum amount provided hereinabove.
8. In the event that following payment by Transmark, but prior to construction of the traffic
signal, the Town loses jurisdiction over the intersection for any reason, Transmark shall
be refunded its funds paid toward construction of the traffic signal.
9. The Town shall be responsible for, and shall pay for, all future maintenance, operation
and improvements to the traffic control device, including the replacement of poles.
10. Prior to commencement of construction, Transmark shall dedicate an additional four (4')
feet of property along the West property line of the Property to the Town for the purpose
of widening the existing alley to twenty-four (24') feet. Transmark shall design and
construct the improvements to the alley, to meet all Town specifications and
requirements, at its own expense, as shown on the Site Plan. Upon completion of the
improvements to the alley to town specifications, and upon inspection and approval by
the Town Engineer, the Town shall accept the alley for the purposes of future
maintenance.
11. Transmark agrees that this Agreement shall only apply if the Property is sold to
k Transmark. In the event that the Property is not purchased and owned by Transmark by
May 31, 1995, this Agreement shall terminate and the Property shall be controlled by
Marana Ordinance No. 95.01. In the event the Property is purchased by Transmark, and
construction on the Property is not commenced within one year from the date of this
Agreement, and/or construction on the Property is not substantially completed by two
years from the date of this Agreement, this Agreement shall terminate and the property
shall be controlled by Marana Ordinance No. 95.01. This agreement shall immediately
terminate upon a breach by either party, and such termination shall be in addition to any
other remedy allowed at law or in equity.
12. No person or entity who is not a party to this Agreement shall be considered a third -party
beneficiary to this Agreement.
13. All notices, filings, consents, approvals and other communications provided for herein
or given in connection herewith shall be validly given, filed, made, transmitted or served
if in writing and delivered personally or sent by registered or certified United States
mail, postage prepaid, if to:
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The Town Town of Marana
13251 North Lon Adams Road
Marana, Arizona 85653
Attn: Town Manager
with a copy to: Daniel J. Hochuli & Associates
3275 West Ina Road
Suite 109
Tucson, Arizona 85741-2152
Attn: Daniel J. Hochuli, Esq.
Transmark Company Transmark Company
27630 Commerce Center Drive, Suite F
Temecula, CA 92590
Attn: Adam Karon
with a copy to: Eric S. Baker
Snell & Wilmer
1500 Norwest Tower
One South Church Ave.
Tucson, AZ 85701
or to such other addresses as either party hereto may from time to time designate in
writing and deliver in a like manner. Notices, filings, consents, approvals and
communication given by mail shall be deemed delivered seventy-two (72) hours following
deposit in the U.S. mail, postage prepaid and addressed as set forth above.
14. Concurrently with its execution hereof, Transmark Company shall deliver to the Town
a certified copy of its corporate resolution approving this Agreement, a certified copy of
by-laws identifying the officer(s) authorized to execute this Agreement, or other evidence
of its authority to enter into this Agreement.
15. No delay in exercising any right or remedy shall constitute a waiver thereof, and no
waiver by the Town or Transmark of the breach 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.
16. In the event any party hereto finds it necessary to bring an action at law or other
proceeding against any other party to enforce any of the terms, covenants or conditions
hereof, or by reason of any breach of default hereunder, the party prevailing in any such
action or other proceeding shall be paid all reasonable costs and reasonable attorneys'
fees by the other party, and in the event any judgment is secured by said prevailing
party, all such costs and attorneys' fees shall be included therein, such fees to be set by
the court and not by jury.
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17. 'Phis 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
such counterparts and such signature pages all attached to a single instrument so that the
signatures of all parties may be physically attached to a single document.
18. Any exhibit attached hereto shall be deemed to have been incorporated herein by this
reference with the same force and effect as if fully set forth in the body hereof.
19. Each of the parties hereto shall execute and deliver all such documents and perform all
such acts as reasonably necessary, from time to time, to carry out the matters
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 of the Property. Failure of the Town to act in accordance with this
provision shall not be uses to penalize Transmark under this Agreement.
20. Time is of the essence of this Agreement. All of the provisions hereof shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
Notwithstanding the foregoing, to the extent permitted by law, the parties' rights
hereunder may only be assigned by a written instrument, recorded in the Official Records
of Pima County, Arizona, expressly assigning such rights. The Town shall have the
right to approve or withhold approval of any assignment.
21. 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 Town and either
of the other parties. 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 hereto, and
no such other person, firm, organization or corporation shall have any right or cause of
action hereunder.
22. This Agreement constitutes the entire agreement between the parties hereto pertaining to
the subject matter hereof. All prior and contemporaneous agreements, representations
and understanding of the parties, oral or written; are hereby superseded and merged
herein.
23. No change or addition is to be made to this Agreement except by a written amendment
executed by the parties hereto to which such amendment shall apply. Any amendment
not executed by all parties hereto shall only be effective as to the parties that execute
such amendment. Within ten (10) days after any amendment to this Agreement, such
amendment shall be recorded in the Official Records of Pima County, Arizona.
24. If any provision of ttus Agreement is declared void or unenforceable, such provision shall
be severed from this Agreement, which shall otherwise remain in full force and effect.
If any applicable law or court of competent jurisdiction excuses any party to this
Agreement from undertaking any contractual commitment to perform any act hereunder,
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this Agreement shall remain in full force and effect, but the provision requiring such
action shall be deemed to permit any party to this Agreement to take such action at its
discretion.
25. 'flus Agreement is entered into in Arizona and shall be construed and interpreted under
the laws of Arizona, and any litigation pertaining to this Agreement shall be brought in
Pima County, Arizona, and all parties hereto submit to personal jurisdiction in the
Arizona courts. This Agreement has been negotiated by all parties hereto, 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.
26. No later than ten (10) days after this Agreement has been executed by the Town and the
parties, it shall be recorded in its entirety, by the Town in the Official Records of Pirna
County, Arizona.
27. Upon the adoption of this Agreement, Transrnark shall indemnify the Town and its agents
and employees and shall hold the Town and its agents and employees harmless from, for
and against any and all claims and costs incurred, including but not limited to reasonable
attorneys' fees and other administrative or internal costs actually and directly incurred
by the Town in connection with a challenge in any subsequent judicial or administrative
proceeding to: (i) the Town's or the other parties' authority to carry out the provisions
of this Agreement; (ii) the development of the Property in conformance with the Site
Plan; or (iii) the Town's ability to enter into this Agreement. Nothing in this paragraph
shall obligate Transrnark to indemnify and hold the Town harmless for matters
attributable to the negligence or intentional act of the Town or its agents or employees.
The indemnity provided herein shall survive any termination of this Agreement.
28. If any party to this Agreement is in default under any provision of this Agreement, the
non -defaulting party shall be entitled, without prejudice to any other right or remedy that
it may have under this Agreement, at law or in equity, to specific performance by the
defaulting party of this Agreement, or, in the alternative, to terminate this Agreement as
if this Agreement had expired in the normal course and to exercise any and all other
remedies available to it at law or in equity.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
TOWN OF MARANA, an Arizona
municipal corporation
By:
Ora Mae Harn
Mayor
Page 7 of 8
ATTEST:
Sandy Groseclose
Town Clerk
APPROVED AS TO FORM AND AUTHORITY
The foregoing Agreement has been reviewed by
the undersigned attorney who has determined that
it is in proper form and within the power and
authority granted under the laws of the State of
Arizona to the Town of Marana.
Daniel J. H ch 1, Esq.
Attorney for Town of Marana
STATE OF
County of
ss.
)
TRANSMARK COMPANY
an Arizona corporation
By:
Its:
The foregoing document was acknowledged before me the day of
, 1995) by , the of
TRANSMARK COMPANY, an Arizona corporation, on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
Page 8 of 8
EXHIBITS TO BE INCLUDED IN FINAL DRAFT OF AGREEMENT:
EXHIBIT A: Legal Description of the Property.
EXI-III3IT B: Map of the Property
EXHIBIT C: Town Engineer's Letter of Concerns.
EXHIBIT D: Site Plan
"Exhibit A"
LEGAL DESCRIPTION
The soulliern 300' of the south half of the southwest quarter of Section 32, Township 12 South,
Ranke 13 East, approximately 1.8 acres.
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EXHIBIT C
The following changes shall be made to the Site Analysis of the Property:
1. Add verbiage that states, per Section 05.11.02 of the Town of Marana Land
Development Code, subsection I. Site Development Standard, 5. Access and Traffic
Control, Item 9, that the access is limited to the collector or arterial streets, i.e., Ina
Road and Meredith Boulevard.
2. Add verbiage to the same subsection, item C. That no access drive shall be hearer than
one hundred (100) feet to the intersection for any two (2) street rights-of-way lines nor
shall any such part be nearer than fifty (50) feet to any side or rear lot line.
3. The site is required to have some method of peak or volumetric runoff reduction. The
amount of reduction is stipulated within the storm water detention/retention manual per
Ordinance No. 90.13. The five-year threshold retention criteria shall apply to this site.
4. Paragraph five (5) is incorrect, and on-site detention shall be required. Also the maps
will need to be adjusted to show the retention basins.
IAD COMMERCIAL DEVELOPMENTS
LOCATION MAP
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`" EVELOPMENT PLAN
I N A FAN ESTATES BOOK 25 PAGE U APN: 2254(02B
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