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HomeMy WebLinkAboutResolution 95-018 granting a variance to the transmark company for property located near ina road and meredith boulevardRESOLUTION NO. 95-18 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, ACTING AS THE MARANA BOARD OF ADJUSTMENT, GRANTING A VARIANCE TO THE TRANSMARK COMPANY, FOR PROPERTY LOCATED AT THE NORTHWEST CORNER OF INA ROAD AND MEREDITH BOULEVARD. WHEREAS, The Transmark Company intends to purchase the property located at the Northwest corner of Ina Road and Meredith Boulevard, more specifically identified on Exhibit A, and intends to develop certain restaurants and improvements at said site; and WHEREAS, the Marana Land Development Code requires a side yard setback of twenty (20) feet and a total lot size over one (1) acre, and the Transmark Company has requested a variance to reduce the side yard setback to zero (0), and to allow a minimum lot size of less than one (1) acre; and WHEREAS, the Town Council, acting as the Board of Adjustment, and pursuant to A.R.S. §9-462.06 is empowered to grant such variance, and believes that such variance is authorized by A.R.S. §9-462.06 and is in the best interests of the Town of Mararia, Arizona. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana, Arizona, acting as the Board of Adjustment, that property described on Exhibit A hereto be granted a variance as follows and as shown on Exhibit B: The side yard setback requirement of twenty (20) feet is waived, and the property is granted a variance to allow a side yard setback of zero (0), and 2. The lot size requirement of one (1) acre is waived. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 21st day of March, 1995. S ~[6 d ~G ro'o'o'o'o'o'o'o'o'b~ecJ~ffe / Town Clerk/./ Daniel J. Hochuli Town Attorney Mayor Ora Haiti ~ e Chair, Board of Adjustment Resolution No. 95-18 Page 1 of 1 "Exhibit A" LEGAL DESCRIPTION The sonthern 300' of tile south half of tile southwest quarter of Section 32, Township 12 South, Range 13 Eas~, approximately 1.8 acres. ~) -- ~ 0 1D --' 0 x uJ When recorded, return to: Daniel J. 11ochuli 3275 W. Inn Road, Suite 109 Tucson, AZ 85741-2152 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (hereinafter "Agreement") is made as of this day of , 1995, by and between the TOWN OF MARANA, an Arizona municipal corporation (hereinafter "Town"), and and TRANSMARK COMPP;NY, 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 on this request for change of zoning was held by the Mararia 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: A detailed site plan shall be returned to the Planning Commission for acceptance and approval. 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, Page 1 of 8 culvert, entrance and other issues that may apply to the approval of the detailed site plan. 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 Town 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 consmet 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. The 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 Mararia Planning Administrator, so long as such modifications do not substantially alter the Page 2 of 8 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 #I of Ordinance No. 95.01, which required Planning Commission acceptance of a detailed site plan. Transmark shall meet all the Town Engineer's concerns as set forth in "Exhibit C" to this Agreement. 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 Ins 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. 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. 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: ao All improvements required on Meredith Boulevard will be at the sole expense of Transmark and will be performed contemperaneously.with the development of the Property. 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. 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. 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 Page 3 of 8 10. 11. 12. 13. 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 of the design and construction of the traffic signal, Transmark shall immediately upon demand tender the rest of its obligation, up to the maximum amount pwvided hereinabove. 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. 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. 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. Transmark agrees that this Agreement shall only apply if the Property is sold to Transmark. In the event that the Property is not purchased and owned by Transmark by M~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 Mararia 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. No person or entity who is not a party to this Agreement shall be considered a third-party beneficiary to this Agreement. 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 mall, postage prepaid, if to: Page 4 of 8 14. 15. 16. The Town Town of Mararia 13251 North Lon Adams Road Mararia, Arizona 85653 Attn: Town Manager with a copy to: Daniel J. Hochuli & Associates 3275 West Ins Road Suite 109 Tucson, Arizona 85741-2152 Attn: Daniel J. Hochuli, Esq. Transmark Company 'Fransmark Company 27630 Commerce Center Drive, Suite F Temecula, CA 92590 Attn: Adam Karon with a copy to: Eric S. Baker Snell & Wilmer I500 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 seventy4wo (72) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above. 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. 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. 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. Page 5 of 8 17. 18. 19. 20. 21. 22. 23. 24. 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 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. 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. 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. 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. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any parmership, 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. 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 writteni are hereby superseded and merged herein. 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. If any provision of this 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 underhxldng any contractual commitment to perform any act hereunder, Page 6 of 8 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. This 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 shaft be recorded in its entirety, by the Town in the Official Records of Pima County, Arizona. 27. Upon the adoption of this Agreement, Transmark 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 ('fii) the Town's ability to enter into this Agreement. Nothing in this paragraph shall obligate Transmark 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 paxties have executed this Agreement the day and year first above written. TOWN OF MARANA, an Arizona municipal corporation Ors Mae Ham ( Mayor Page 7 of 8 A'I~I?EST: 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 Mararia. Attorney for Town of Marana TRANSMARK COMPANY an Arizona corporation By: Its: STATE OF ) County of ) The foregoing document was acknowledged before me the , 1995, by , the TRANSMARK COMPANY, an Arizona corporation, on behalf of said corporation. IN WITNESS WHEREOF, I hereunto set my hand and official seal. day of of My commission expires: Notary Public Page 8 of 8 EXHIBITS TO BE INCLUDED IN FINAL DRAFT OF AGREEMEaNT: EXHIBIT A: Legal Description of the Property. EXHIBIT B: Map of the Property EXHIBIT C: Town Engineer's Letter of Concerns. EXHIBIT D: Site Plan "Exhibit A" LEGAL DESCRIPTION The southern 300' of the south half of the southwest quarter of Sectiou 32, Township 12 South, Range 13 Ease, approximately 1.8 acres. ._/ , z 0 TR SR MAP I-a.2. Noah Existing Zoning and Land Use WINTERS & ASSOCIATES, INC. DEVELOPMENT & PLANNING CONSULTANTS 270 North Church Avenue Tucson, Arizona 8S701 (602) 628-1118 EXIffIB1T C The following changes shall be made to the Site Analysis of the Property: Add verbiage that status, per Section 05.11.02 of the Town of Mararia 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. 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 neaxer than fifty (50) feet to any side or rear lot line. The site is required to have some method of peak or volumetric runoff reduction. The amount of reduction is stipulated within the storm water detenfion/reten. tion manual per Ordinance No. 90.13. The five-year threshold retention criteria shall apply to this site. 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. J DEVELOPMENTS Id LOCATION MAP ./ EVELOPMENT PLAN