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HomeMy WebLinkAboutResolution 2021-064 Authorizing to Execute an Agreement for Purchase & Sale of Real Property and Escrow Instructions between the Town and Penvesco for the sale of property located in Marana Air Commerce Park MARANA RESOLUTION NO. 2021-064 RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS BETWEEN THE TOWN AND PENVESCO FOR THE SALE OF TOWN PROPERTY LOCATED IN MARANA AIR COMMERCE PARK WHEREAS, on November 17, 2020, the Town Council adopted Ordinance No. 2020.018 rezoning approximately 63.8 acres of Town-owned land located adjacent to the Marana Regional Airport from 'C' Large Lot Zone and 'AG' Agricultural to 'HI' Heavy Industry, with the intent of developing the area into a commercial-industrial park as proposed in the 2017 Marana Regional Airport Master Plan and consistent with the 2040 General Plan; and WHEREAS,on April 20,2021,the Town Council adopted Resolution No.2021-048, approving a final plat for the rezoned area, now known as Marana Air Commerce Park; and WHEREAS Penvesco, a Michigan co-partnership, desires to purchase property in Marana Air Commerce Park to develop new corporate headquarters for The J.D. Russell Company, a Michigan corporation that manufactures and distributes steel, plastic, rubber, and wood products used in the concrete construction industry and the landscape sector; and WHEREAS The J.D. Russell Company expects to build a 25,000 to 30,000 square foot structure to house corporate activities and expanded light production and distribution, and to initially employ approximately 30 people at this location; and WHEREAS Penvesco also intends to erect two other free standing light industrial buildings on the property for lease to other businesses; and WHEREAS A.R.S. § 9-500.11 authorizes the Town Council to appropriate and spend public monies for and in connection with economic development activities, including the conveyance of real property,where the Town Council finds and determines that the conveyance will assist in the creation or retention of jobs or will otherwise improve or enhance the economic welfare of the inhabitants of the Town; and WHEREAS the Town and Penvesco have negotiated an Agreement for Purchase and Sale of Real Property and Escrow Instructions (the "Purchase Agreement") for Penvesco to purchase property in Marana Air Commerce Park for its appraised value; and Resolution No.2021-064 - 1 - WHEREAS the Town Council finds that the proposed Purchase Agreement will assist in the creation or retention of jobs or will otherwise improve or enhance the economic welfare of the inhabitants of the Town; and WHEREAS the Town Council finds that the Purchase Agreement with Penvesco is in the best interests of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Purchase Agreement between the Town and Penvesco for the sale of Town property located in Marana Air Commerce Park, in substantially the form attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved, the Mayor is hereby authorized to sign it, and the Town Manager is hereby authorized to sign any associated deeds and related sale documents for and on behalf of the Town of Marana. SECTION 2. The Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 4th day of May, 2021. Mayor Ed Honea ATTEST: APPR•VED AS TO FORM: - •I. 1K Cherry L. :wson, Town Clerk Jan- irall, "own Attorney MARANA ESTABLISHED 1977 Resolution No.2021-064 -2 - Exhibit A to Marana Resolution No. 2021-064 AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS This Agreement is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Seller"), and PENVESCO, a Michigan co-partnership (the "Buyer"). The Seller and the Buyer are sometimes referred to collectively in this Agreement as the"Parties" and individually as a "Party." 1. Property. The Buyer wishes to acquire fee title to lands owned by the Seller, with a land area of approximately 4.184 acres, that are referred to in this Agreement as the "Property" and more particularly described as follows: Lot 1 of Marana Air Commerce Park, a subdivision of Pima County, Arizona according to the final plat recorded in the office of the Pima County Recorder at Sequence Number 2. Purchase Price. The Seller agrees to sell and the Buyer agrees to acquire the Property for $2.53 per square foot, for the total sum of $461,105.25 (the "Purchase Price"), subject to the terms and conditions set forth in this Agreement, and in the following manner: a. Upon full and final execution of this Agreement, escrow shall be opened with the Escrow Agent by depositing a copy of the fully executed Agreement with Escrow Agent, and a sum of $13,800.00 (the "Earnest Money") shall be paid by the Buyer to Escrow Agent in cash, certified funds, or by wire transfer. b. The balance of the Purchase Price shall be paid by the Buyer in cash, certified funds, or by wire transfer, by depositing this sum with Escrow Agent on or before the Closing. 3. Joint Escrow Instructions. Escrow Agent is by this Agreement appointed and designated to act as such and is authorized and instructed to deliver, pursuant to the terms of this Agreement, such documents and monies deposited with Escrow Agent as provided in this Agreement. The provisions of this Agreement shall constitute joint Escrow Instructions to the Escrow Agent; provided however, that the Parties shall execute such additional instructions as requested by the Escrow Agent not inconsistent with the provisions of this Agreement. 4. Closing Date. The closing of this transaction(the "Closing", "Closing Date" or"Close of Escrow") shall mean the date of which the Special Warranty Deed is recorded conveying the property from Seller to Buyer. The Closing shall occur at the office of Stewart Title & Trust of Tucson, Attn: Michelle Jolly, Escrow Officer ("Escrow Agent"), located at 3939 E. Broadway Blvd., Tucson, Arizona 85711, or at such other place as may be mutually agreed upon by the Parties. The Closing Date shall be 14 days following the expiration of the 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -1- Exhibit A to Marana Resolution No. 2021-064 Inspection Period, or as mutually agreed by the Seller and the Buyer. The Parties anticipate that Closing will occur no later than June 29, 2021. 5. Title Review,Title Insurance, and Feasibility Period. a. Title Policy Order. Within five days of the Effective Date, the Buyer shall order from Stewart Title & Trust of Tucson (the "Title Company") a commitment for an owner's title insurance policy for the Property. The type of policy (standard, extended, etc.) is Buyer's choice, and is referred to in this Agreement as the "Owner's Policy." b. Title Review. The Buyer shall have 30 days from the delivery of the preliminary title commitment (the "Title Review Period") in which to review and to provide written objection to the Escrow Agent and the Seller (the "Buyer's Notice") to the condition of title to the Property (the "Title Exceptions"). If the Buyer fails to notify the Seller and the Escrow Agent in writing of the Buyer's approval or disapproval of the Title Exceptions within the Title Review Period, the Title Exceptions as shown in the preliminary title commitment shall be deemed approved by the Buyer. Any Title Exception objected to by the Buyer in the Buyer's Notice shall be an"Unpermitted Exception." i. If the Buyer gives notice of disapproval to the Seller and the Escrow Agent, during the Title Review Period, the Seller shall be required to cure the Unpermitted Exceptions by removing or correcting any Unpermitted Exceptions or by causing the Title Company to waive or commit to insure over the Unpermitted Exceptions at the Seller's cost. If the Seller, after using commercially reasonable efforts, is unable to cure any one or more of the Unpermitted Exceptions prior to the scheduled Closing Date, the Buyer at its sole discretion may exercise any of the following options: (A) postpone the Closing for an additional period of time to be determined by the Parties to allow for the removal of the Unpermitted Exceptions; or (B) waive the removal of any such Unpermitted Exception as a condition to Closing, in which event such Unpermitted Exception shall be deemed an additional Permitted Exception under this Agreement. ii. If the Title Company amends the Title Commitment to provide for exceptions in addition to those approved by the Buyer, the Buyer shall have three days after the Buyer's receipt of any such amendment together with good and legible copies all documents referenced in this Agreement to give notice to Escrow Agent and the Seller whether it shall accept the additional exceptions or elect to terminate this Agreement unless such are cured to its reasonable satisfaction by the Seller. The Closing Date shall be extended, if necessary, to accommodate this procedure. c. Title Policies. The Escrow Agent shall issue to the Buyer at Closing the Owner's Policy (or the Title Company's irrevocable commitment to issue such Owner's Title Policy within 30 days after Closing). The Owner's Policy shall be issued by the Title Company in the full amount of the Purchase Price, effective as of the Closing and shall insure the Buyer that fee simple title to the Property is vested in the Buyer subject only to the "Permitted Exceptions," which term is defined to mean only such title matters as 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -2- Exhibit A to Marana Resolution No. 2021-064 are approved and accepted by the Buyer in accordance with the provisions of subparagraph 5.b above. The Seller shall pay the full cost of the Owner's Policy and any additional charges arising out of the title policy. d. Inspection Period. The Buyer shall have until close of business on June 15, 2021, to inspect or investigate to the Buyer's sole and absolute satisfaction the Property (the "Inspection Period"). During the Inspection Period, at the Buyer's expense, the Buyer may cause to be prepared or performed an appraisal and environmental reports and studies and any other reports, surveys or studies which are deemed necessary by the Buyer in order to perform its due diligence investigation and analysis of the Property. Prior to the expiration of the Inspection Period, the Buyer shall notify the Seller if the Buyer determines, in its sole discretion, to terminate this Agreement. 6. Representations and warranties of the Seller and the Buyer. a. The Seller's representations and warranties. The Seller represents and warrants,as of the date of this Agreement, as follows: i. The Seller is the owner of the Property and the Seller shall convey title to the Property to the Buyer at Closing by Special Warranty Deed,free of all liens,claims or encumbrances, subject only to the Permitted Exceptions; ii. At the Close of Escrow, the Seller shall be ready, willing, and able to perform in accordance with the terms of this Agreement. iii. The execution and delivery of this Agreement and the consummation of the transaction contemplated by this Agreement have been duly authorized on the part of the Seller. iv. The Seller will perform, observe, and comply with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed and complied with by the Seller on or before the Closing and will execute and deliver all documents required to be executed and delivered by the Seller in order to consummate the transaction contemplated by this Agreement on or before the Closing (if such shall close in accordance with the terms of this Agreement) and of the time periods set forth in this Agreement. v. The Seller has not been notified that the Property is not in compliance (both as to condition and use) with all applicable federal, state and local laws, statutes, ordinances, codes and administrative rules or regulations and with any applicable orders of any court or other judicial body having jurisdiction over the Property, including, but not limited to, building, subdivision, pollution, environmental protection, water disposal, health, fire and safety engineering codes, rules or regulations, and as of Closing the Seller shall have taken no action to knowingly cause the Property to violate any of the foregoing as the same existed upon the Opening of Escrow. 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -3- Exhibit A to Marana Resolution No. 2021-064 vi. The Seller has no actual notice of any issues relating to access to the Property or utility service to the Property. vii. Other than the representations and warranties expressly stated in this Agreement, the Seller makes no further representations and/or warranties of any sort whatsoever.Except as expressly provided in this Agreement,the Buyer is relying entirely on the Buyer's own investigations and examinations as to the physical condition and every other aspect of the Property, including without limitation, conformity to past, current or future zoning or building code requirements, the existence of soil instability, soil repairs, and any other soil conditions, sufficiency of undershoring and drainage, the existence of any flood plains or flood hazards or similar conditions, every other matter affecting the stability or integrity of the Property and any improvements or buildings located on the Property, the environmental condition of the Property and the income and expenses generated by the Property. The Buyer acknowledges that it has performed the investigation, that any information provided or made available or to be provided or made available to the Buyer by the Seller, or its agents, brokers, members, managers, partners, representatives, or others was provided or made available or will be provided or made available solely as a courtesy, and that the Buyer has the sole responsibility for determining the existence or nonexistence of any fact material to the Buyer's decision to purchase the Property. The Buyer acknowledges that the Buyer is purchasing the Property on an"AS-IS, WHERE-IS" basis WITH ALL FAULTS, except as specifically represented and warranted in this subparagraph 6.a of this Agreement, without any implied warranties, and the Buyer is completely at risk with respect to all attributes and conditions, latent or otherwise, of the Property. The Seller does not warrant the Property to be free from defects and the Buyer expressly accepts the possibility of such defects. By executing this Agreement, the Buyer by this Agreement gives the Seller, as a material inducement for the Seller to enter into this Agreement, a full release of any and all claims or causes of action arising at common law,under statute or otherwise, whether sounding in contract or in tort, arising out of or related to the condition of the Property and any equipment remaining on the Property. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Buyer does not releases the Seller from any claims or causes of action the Buyer may have now or in the future based upon fraudulent misrepresentation by the Seller. b. The Buyer's representations and warranties. The Buyer represents and warrants, as of the date of this Agreement, as follows: i. At the Close of Escrow, the Buyer shall be ready, willing, and able to perform in accordance with the terms of this Agreement. ii. The execution and delivery of this Agreement and the consummation of the transaction contemplated by this Agreement have been duly authorized on the part of the Buyer. 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -4- Exhibit A to Marana Resolution No. 2021-064 iii. The Buyer warrants to the Seller that the Buyer understands that this is a binding contract, that there are no oral or verbal representations about the Property which have been made by the Seller which will survive the execution of this Agreement including, but not limited to, statements as to size, acreage, boundaries, location, zoning, suitability or any other representation, unless said statement is in expressly made in writing in this Agreement or related documents and signed by the Seller. iv. The Buyer will, prior to Closing, fully inspect the Property, in accordance with subparagraph 5.d above, and at Closing, will accept the Property in an "AS-IS, WHERE-IS" condition, WITH ALL FAULTS, unless this Agreement has been canceled in accordance with its terms and conditions. v. The Buyer will perform, observe, and comply with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed and complied with by the Buyer on or before the Closing and will execute and deliver all documents required to be executed and delivered by the Buyer in order to consummate the transaction contemplated by this Agreement on or before the Closing (if such shall close in accordance with the terms of this Agreement) and of the time periods set forth in this Agreement. c. Survival of representations and warranties after Closing. The Parties acknowledge that each and every representations and warranty contained in this paragraph 6 shall be true and accurate as of the date of this Agreement and also as of the Closing and shall constitute a material part of the consideration under this Agreement and shall survive the Closing. All obligations to be performed at the Closing will survive the Closing and will not be deemed to merge upon delivery and acceptance of the conveyance instruments at Closing. 7. Environmental Representations. The Buyer and the Seller agree that neither Party is assuming any obligation of the other Party relating to any potential liability arising from the environmental condition of the Property. Each Party shall remain responsible for its obligations as set forth by law. The Seller hereby represents and warrants that, during Seller's ownership of the Property, to the best of the Seller's knowledge, no pollutants, contaminants, toxic or hazardous substances, wastes, or materials have been stored, used, or located on the Property or within any surface or subsurface waters thereof; that no underground tanks have been located on the Property; that the Property is in compliance with all Federal, state, and local environmental laws, regulations and ordinances; and that no legal action of any kind has been commenced or threatened with respect to the Property. 8. Environmental Inspection Rights. The Seller shall permit the Buyer to conduct such inspections of the Property as the Buyer deems necessary to determine the environmental condition of the Property. If environmental inspections do not specifically identify contamination but indicate a potential for contamination and recommend further testing or inspection, the Parties hereby agree to extend the date of closing to at least 30 days after the report for such additional testing or inspection is completed on behalf of the Buyer. If any 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -5- Exhibit A to Marana Resolution No. 2021-064 environmental inspection reveals the presence of contamination or the need to conduct environmental clean-up as a result of contamination occurring during Seller's Ownership of the Property, the Seller shall remediate all contamination within the Property adequate to bring it into compliance with all applicable federal, state, or local environmental regulations prior to Closing or the Buyer may terminate this Agreement. If contamination is discovered which occurred prior to Seller acquiring title to the Property, Seller may decline to conduct a clean-up to bring the Property into compliance with applicable law. In such case, Buyer may terminate this Agreement. 9. Closing. a. The Seller's deliveries. No later than Closing, the Seller shall deliver or cause to be delivered to Escrow Agent each of the following: i. A Special Warranty Deed executed and acknowledged on behalf of the Seller, in recordable form, conveying good and indefeasible fee simple title to the Property to the Buyer, free and clear of any liens, encumbrances, easements, or other matters affecting title to the Property, except the Permitted Exceptions; ii. An Affidavit of Property Value; iii. Such evidence or other documents that may be reasonably required by the Title Company evidencing the status and capacity of the Seller in connection with the sale of the Property; and iv. All additional documents and instruments this Agreement requires to be provided by the Seller at Closing and all additional documents and instruments as are reasonably necessary for the proper consummation of this transaction. b. The Buyer's deliveries. Not later than Closing, the Buyer shall deliver or cause to be delivered to Escrow Agent each of the following: i. An Affidavit of Property Value; ii. All additional documents and instruments this Agreement requires to be provided by the Buyer at Closing and all additional documents and instruments as are reasonably necessary for the proper consummation of this transaction; and iii. Such evidence or other documents that may be reasonably required by the Title Company evidencing the status and capacity of the Buyer in connection with the sale of the Property. c. Possession. At Closing, possession shall be transferred from the Seller to the Buyer and the Seller shall have removed all of the Seller's property,and shall leave the Property in the same condition as of the date of this Agreement. Any personal property remaining upon the Property at Closing shall be transferred to the Buyer gratis at Closing. Upon or as soon after Closing as is practical,the Escrow Agent shall issue and deliver the Owner's Policy to the Buyer as provided in this Agreement. 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -6- Exhibit A to Marana Resolution No. 2021-064 d. Prorations. Ad valorem taxes for the then-current period shall be prorated at the Closing, effective as of the date of Closing. If the Closing shall occur before the tax rate is fixed for the then-current period, the apportionment of the taxes shall be upon the basis of the tax rate for the preceding period applied to the latest assessed valuation,but any difference in actual and ad valorem taxes for the period of sale actually paid by the Buyer shall be adjusted between the Parties upon receipt of written evidence of their payment. Special assessments which are or will become a lien on the Property will be assumed by the Buyer and treated as a Permitted Exception. e. Closing costs. Payment of all closing costs, including but not limited to, the recording fees, sales, intangible and documentary transfer taxes, and escrow fees, shall be split equally by the Buyer and the Seller. f. Escrow Agent obligations. Without limitation, it shall be the obligation of Escrow Agent at Closing: i. To record with the Pima County Recorder the Special Warranty Deed delivered under this Agreement; ii. To deliver to the Pima County Recorder the Affidavit of Property Value; and iii. To cause the issuance and delivery to the Buyer of the Owner's Policy. 10. Indemnification. a. The Buyer's indemnity. The Buyer agrees to indemnify, defend, protect and hold the Seller harmless of and from any and all liabilities, claims, demands, and expenses, of any kind or nature (except those items,which by the terms of this Agreement specifically remain the obligation of the Seller) arising or accruing after the Closing Date and which are in any way related to the ownership, maintenance, or operation of the Property, or from the Buyer's use of the Property prior to Closing including during the Inspection Period, or from any activity, work or things done, permitted or suffered by the Buyer in or about the Property prior to Closing including during the Inspection Period,including, but not limited to, court costs and attorney's fees. b. The Seller's indemnity. The Seller agrees to indemnify, defend, protect and hold the Buyer harmless of and from any and all liabilities, claims, demands, and expenses, of any kind or nature (except those items, which by the terms of this Agreement specifically remain the obligation of the Buyer) arising or accruing prior to the Closing Date and which are in any way related to the ownership, maintenance, or operation of the Property, including, but not limited to, court costs and attorney's fees. c. Notice of claim. If either Party receives notice of a claim or demand which results or may result in indemnification pursuant subparagraphs 10.a or 10.b of this Agreement, the Party receiving notice of the claim shall as soon as practicable give notice of request for indemnity to the other Party. The Party receiving the notice of request for indemnity shall immediately take such measures as may be reasonably required to properly and effectively defend the claim, and may defend same with counsel of its own choosing. If 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -7- Exhibit A to Marana Resolution No. 2021-064 the Party receiving notice of request for indemnity fails to properly and effectively defend the claim, the Party giving notice of request for indemnity may defend the claim and seek reimbursement of all expenses and of any final judgment that should have been covered by the indemnifying Party. 11. Default and remedies. a. If the Buyer fails to consummate this Agreement for any reason except: (i) the Seller's default, (ii) termination of this Agreement by the Buyer pursuant to a right of termination given in this Agreement, or (iii) the failure of a condition to Closing or to the Buyer's obligations under this Agreement as set forth in this Agreement,the Buyer shall be in default under this Agreement in which event the Seller, as its sole and exclusive remedy, may terminate this Agreement and Escrow Agent shall transfer to the Seller the Earnest Money,which sum shall constitute the Seller's liquidated damages for the breach of this Agreement and not a penalty, it being the agreement and understanding of the Parties that the Seller's damages would otherwise be difficult if not impossible to determine. b. If default by the Seller causes the Seller not to close, the Buyer shall have all remedies available at law against the Seller, including but not limited to, return of its Earnest Money and specific performance. c. Except at otherwise provided in this Agreement, any Party who wishes to cancel this Agreement because of any breach by the other Party, or because escrow fails to close by the agreed date, and who is not himself in breach of this Agreement, except as occasioned by a breach by the other Party, may cancel this Agreement by delivering a notice to either the breaching party and to the Escrow Agent stating the nature of the breach and that this Agreement shall be cancelled unless the breach is cured within 15 calendar days following the delivery of the notice. Any notice delivered to any Party must be delivered to the Escrow Agent. Within three calendar days after receipt of such notice, the Escrow Agent shall send the notice by mail to the Party in breach at the address contained in the notice. No further notice shall be required. If the breach is not cured within 15 calendar days following the delivery of the notice, this Agreement shall be cancelled. 12. Brokers.The Parties represent that they have not retained the services of a real estate broker or agent with respect to the sale of the Property. 13. No Leases. The Seller warrants that there are no oral or written leases on all or any portion of the Property. 14. Right of Entry. This Agreement grants the Buyer, its employees, agents, and consultants, the right to enter the Property effective as of the date this Agreement is signed on behalf of the Seller, which shall terminate when the Buyer takes title to the Property or when the Buyer notifies the Seller that the Buyer has determined to terminate this Agreement as described in paragraph 5(d) above. 15. No Sale. The Seller shall not sell or encumber the Property prior to close of escrow. 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -8- Exhibit A to Marana Resolution No. 2021-064 16. Buyer's obligation for development of the Property. a. No later than 36 months after the Closing Date, the Buyer shall submit to the Seller a development plan conforming to the requirements of the most recently promulgated Town of Marana Development Plan Guide or Checklists for construction of improvements to the Property. All development on the Property shall comply with the conditions of rezoning set forth in Marana Ordinance No. 2020.018,recorded in the office of the Pima County Recorder at Sequence Number 20203250033. The Buyer shall begin construction of the improvements in conformance with the approved development plan no later than 48 months after the Closing Date, and shall obtain a certificate(s) of occupancy for those improvements within 72 months of the Closing Date. b. If the Buyer is unable to comply with any of the benchmarks established in paragraph 16.a above, the Buyer may submit a written notice and request for extension to the Seller at least 60 days prior to the expiration of the relevant benchmark deadline. The notice and request shall set forth in detail the reasons the Buyer is unable to comply with the provisions of paragraph 16.a, as well as a revised timeline for completion of the benchmark in question. If good cause is shown, the Seller shall grant an extension of the deadline, in increments of no more than six months at a time. If the Seller rejects the request for extension,the Seller shall give detailed reasons therefor and shall use its best efforts to provide recommended revisions or other conditions for acceptance. 17. Seller's option to buyback Property. If the Buyer fails to comply with the development obligations set forth in paragraph 16.a above,and fails to request or be granted an extension pursuant to paragraph 16.b above, (a "Fundamental Breach"), then the Seller may exercise its option, in its sole discretion, to re-purchase the Property by delivering written notice of such intent to the Buyer within 120 days of the Fundamental Breach. If the Seller exercises its repurchase rights as set forth in this paragraph 17, the repurchase price shall be 5461,105.25 (the "Repurchase Price"). The repurchase of the Property shall be consummated through the Escrow Agent, at a time determined by the Seller, but no later than 90 days after the delivery of the Seller's notice that it intends to exercise its repurchase rights (the "Repurchase Closing"). The Repurchase Price shall be payable in cash or other immediately available funds. The Buyer shall convey title to the Property to the Seller by Special Warranty Deed, subject to all real estate taxes, installments of special assessments, easements,restrictions,covenants and conditions of record,except delinquent real property taxes or installments of special assessments. Any mortgage or liens, including potential mechanics liens or other liens outstanding on the Property,shall be discharged by the Buyer at the Repurchase Closing, and the Buyer shall deliver to the Seller full lien waivers from all contractors and subcontractors in connection with the construction of any unfinished improvements. Current real property taxes and installments of special assessments shall be prorated as of the date of the Repurchase Closing. The Buyer shall leave the Property in the same condition as of the date of this Agreement, normal wear and tear excepted. The Buyer shall remove all unfinished improvements from the Property, unless the Seller gives the Buyer written permission to abandon any unfinished improvements on the Property. Any personal property remaining upon the Property at the Repurchase Closing shall be 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -9- Exhibit A to Marana Resolution No. 2021-064 transferred to the Seller gratis at the Repurchase Closing. The costs of the Repurchase Closing and title shall be paid by the Buyer. 18. Miscellaneous provisions. a. Date of this Agreement. The terms "date of this Agreement" or "effective date of this Agreement" as used in this Agreement, shall mean the later of the following dates: (i) the date of the Seller's signature on this Agreement or (ii) the date of the Buyer's signature on this Agreement. b. Notices. Any notice or communication required or permitted under this Agreement shall be deemed to be delivered, whether actually received or not, when deposited in the United States mail, postage fully prepaid, registered or certified mail, addressed to the intended recipient at the address on the signature page of this Agreement or when received if delivered personally. Notices delivered by email shall also be allowed and shall be effective upon transmission provided electronic confirmation of the transmission is kept by the Party giving notice. Any address for notice may be changed by five days prior written notice so given. Any notice to a Party required or permitted under this Agreement shall be delivered to the following: If to the Seller: TOWN OF MARANA Attn: Town Attorney 11555 W. Civic Center Drive, Bldg. A3 Marana, Arizona 85653-7006 jfairall@maranaaz.gov If to the Buyer: PENVESCO Attention: Nicholas H. Danna P.O. Box 36795 Tucson, AZ 85740 If to the Escrow Agent: Susan D. Lane, Escrow Officer STEWART TITLE &TRUST OF TUCSON 6400 N. Oracle Road, Suite 102 Tucson, Arizona 85704 susan.lane@stewart.com c. Interpretation. The Parties acknowledge and agree that each has been given the opportunity to independently review this Agreement with legal counsel,and/or has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions of this Agreement. The Parties have equal bargaining power, and intend the plain meaning of the provisions in this Agreement. In the event of an ambiguity in, or dispute regarding, the interpretation of same, the 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -10- Exhibit A to Marana Resolution No. 2021-064 interpretation of this Agreement shall not be resolved by any rule of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the draftsman. d. Risk of loss. The risk of loss or damage to the Property and all liability to third persons until the Closing shall be borne by the Seller and thereafter shall be borne by the Buyer. e. Counterpart and electronic signatures. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. In addition, this Agreement may contain more than one counterpart of the signature page and this Agreement may be executed by the affixing of the signature page of each of the Parties to one of such counterpart signature pages and all such counterpart signature pages shall be attached to one Agreement, and read having the same force and effect as though all of the signatories had signed a single page. Further, the execution and delivery of this Agreement may be effectuated by the use of electronic transmission and the electronic signature shall be considered an original signature. f. Attorneys' fees. If either Party shall be required to employ an attorney to enforce or defend its rights under this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees,all such fees to be set by the Court and not by the jury. g. Integration. This Agreement contains the complete agreement between the Parties and cannot be varied except by the written agreement of the Parties. The Parties agree that there are no oral agreements, understandings, representations, or warranties which are not expressly set forth in this Agreement. h. Binding effect. This Agreement shall inure to the benefit of and bind the Parties and their respective heirs, representatives, successors, and permitted assigns. i. Dates and time periods. Should the date for the giving of any notice, the performance of any act, or the beginning or end of any period provided for in this Agreement fall on a Saturday,Sunday or other legal holiday,such date shall be extended to the next succeeding business day which is not a Saturday, Sunday or legal holiday. j. Non-waiver. No delay or failure by either Party to exercise any right under this Agreement and no partial or single exercise of such right will constitute a waiver of that or any other right, unless expressly provided in this Agreement. k. Assignment. The Buyer shall have no right, without the prior written approval of the Seller,which approval shall not be unreasonably withheld, to sell, assign, or transfer this Agreement or any rights or responsibilities of the Buyer under this Agreement. 1. Not a partnership/no third party beneficiaries. Nothing in this Agreement shall be deemed to create a partnership or joint venture among the Parties. This Agreement is not intended to benefit and shall not be construed as conveying any rights upon any parties other than the Parties to this Agreement. 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -11- Exhibit A to Marana Resolution No. 2021-064 m. Choice of law/venue. This Agreement shall be governed by Arizona law. Venue for any action brought under this Agreement shall be Pima County. n. Time is of the essence.Time is of the essence in the performance of this Agreement. o. Severability. If any one or more of the provisions of this Agreement or the applicability of any provisions to a specific situation is held to be invalid or unenforceable, the provision will be modified to the minimum extent necessary to make it or its application valid and enforceable, and the validity and enforceability of all of such provisions of this Agreement and all other application of such provisions will not be affected by any such invalidity or unenforceability. p. Independent counsel. The Seller and the Buyer each represent and acknowledge that it has had the benefit and advice of independent legal counsel in connection with the preparation and execution of this Agreement or has been advised to seek such counsel and has voluntarily or knowingly chosen not to do so. q. Conflict of interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation of contracts by the Buyer for certain conflicts of interest. IN WITNESS WHEREOF,the Parties have executed this Agreement as of the last date set forth below their respective signatures THE"SELLER": THE"BUYER": TOWN OF MARANA, an Arizona municipal PENVESCO,a Michigan co-partnership corporation By: By. Nicholas H. Danna, Co-Partner Ed Honea, Mayor D Date: Date: ATTEST: By: Robert A. Danna, Co-Partner Town Clerk Date: APPROVED AS TO FORM: Town Attorney 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -12- Exhibit A to Marana Resolution No. 2021-064 STATE OF ) ss. County of ) The foregoing instrument was acknowledged before me on by Nicholas H. Danna, Co-Partner on behalf of PENVESCO,a Michigan co-partnership. (Seal) Notary Public STATE OF ) ss. County of ) The foregoing instrument was acknowledged before me on by Robert A. Danna, Co-Partner on behalf of PENVESCO,a Michigan co-partnership. (Seal) Notary Public 00074138.DOCX/4 4/29/2021 10:04 AM TOWN OF MARANA/PENVESCO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY -13-