HomeMy WebLinkAbout12/11/2007 Special Session Council Agenda Packet,OW - N
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SPECIAL COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
December 11, 2007, at or after 6:00 p.m.
Ed Honea, Mayor
Herb Kai, Vice Mayor
Council Members
Russell Clanagan
Patti Comerford
Tim Escobedo
Carol McGorray
Roxanne Ziegler
ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA. Revisions to the
agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in italics.
AS A COUR-TESY TO OTHERS, PLEASE TURN OFF 0K PUT IN SILENT MODE ALL PAGER-S
AND CELL PHONES.
Welcome to this Marana Council meeting. Regular Council meetings are usually held the first and third
Tuesday of each month at 7:00 p.m. at the Marana Town Hall, although the date or time may change, or
Special Meetings may be called at other times and/or places. Contact Town Hall or watch for posted
agendas for other meetings. This agenda may be revised up to 24 hours prior to the meeting. In such a
case a new agenda will be posted in place of this agenda.
If you are interested in speaking to the Council during Call to the Public, Public Hearings, or other agenda
items, you must fill out a speaker card (located in the lobby outside the Council Chambers) and deliver it
to the Town Clerk prior to the convening of the meeting.
All persons attending the Council meeting, whether speaking to the Council or not, are expected to
observe the Council Rules, as well as the rules of politeness, propriety, decorum and good conduct. Any
person interfering with the meeting in any way, or acting rudely or loudly will be removed from the
meeting and will not be allowed to return.
To better serve the citizens of Marana and others attending our meetings, the Council Chambers are
wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of
special services as a result of their disability, such as assistive listening devices, agenda materials printed
in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such special
services are available upon prior request to the Town Clerk at least 10 working days prior to the Council
meeting.
Copies of the agenda are available the day of the meeting in the lobby outside the Council Chambers or
online at www.marana.com, by linking to the Town Clerk page under Agendas, Minutes and Ordinances.
For questions about the Council meetings, special services or procedures, please contact the Town Clerk,
at 382-1999, Monday through Friday from 8:00 a.m. to 5:00 p.m.
Posted no later than December 10, 2007, 6:00 p.m., at the Marana Municipal Complex, the Marana
Operations Center and at www.marana.com under Town Clerk, Agendas, Minutes and Ordinances.
4 ,OWN 0,
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SPECIAL COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
December 11, 2007, at or after 6:00 p.m.
SPECIAL MEETING
A. CALL TO ORDER AND ROLL CALL
B. PLEDGE OF ALLEGIANCE AND INVOCATION/MOMENT OF SILENCE
C. APPROVAL OF AGENDA
D. CALL TO THE PUBLIC
At this time any member of the public is allowed to address the Town Council on any
issue not already on tonight's agenda. The speaker may have up to three minutes to
speak. Any persons wishing to address the Council must complete a speaker card
located outside the Council Chambers and deliver it to the Town Clerk prior to the
commencement of the meeting. Pursuant to the Arizona Open Meeting Law, at the
conclusion of Call to the Public, individual members of the council may respond to
criticism made by those who have addressed the Council, may ask staff to review the
matter, or may ask that the matter be placed on a future agenda.
E. PRESENTATIONS -
ANNOUNCEMENTS[UPDATES
PROCLAMATIONS
F. MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS
G. MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS
H. STAFF REPORTS
GENERAL ORDER OF BUSINESS
1. CONSENT AGENDA
The Consent Agenda contains items requiring action by the Council which are generally routine
items not requiring Council discussion. A single motion will approve all items on the Consent
agenda, including any resolutions or ordinances. A Council Member may remove any issue from
the Consent agenda, and that issue will be discussed and voted upon separately, immediately
following the Consent agenda.
J. COUNCIL ACTION
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SPECIAL COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
December 11, 2007, at or after 6:00 p.m.
1. Resolution No. 2007-221: Ordering and declaring formation of the Gladden
Farms (Phase 11) Community Facilities District; approving and authorizing
the execution and delivery of a District Development, Financing Participation
and Intergovernmental Agreement (Gladden Farms (Phase 11) Community
Facilities District) (Erik Montague)
2. Resolution No. 2007-222: Relating to Development; support of the relocation
of the existing Tangerine Road Interchange (Gilbert Davidson)
3. Relating to Development; discussion and direction concerning entering into a
proposed retail tax incentive development agreement regarding the Marana
Spectrum project (Frank Cassidy)
4. PUBLIC HEARING. Resolution No. 2007-219: Relating to Development;
approving and authorizing the 2007 Marana General Plan (Paul Popelka)
K. BOARDS, COMMISSIONS AND COMMITTEES
L. ITEMS FOR DISCUSSION/POSSIBLE ACTION
M. EXECUTIVE SESSIONS
1. Executive Session pursuant to A.R.S. §38-431.03 (A)(3), Council may ask for
discussion or consultation for legal advice with the Town Attorney
concerning any matter listed on this agenda.
2. Executive Session pursuant to A.R.S. §38-431.03 (A)(4) and (7) to consider
the Town's position and instruct its representatives regarding negotiations
for the purchase of property rights needed for the Twin Peaks interchange
project, CIP number 2001-44, from the parcels of property generally
identified as Pima County Assessor's parcel numbers 226-15-010A, 226-08-
0140, and 226-15-0130, and to instruct the Town's attorneys in settlement
negotiations and contemplated condemnation proceedings relating to the
same property rights.
3. Executive Session pursuant to A.R.S. §38-431.03(A)(3),(4),(6) and (7) for
legal advice with the Town Attorney concerning water rights issues and to
consult with and instruct the Town Attorney and the Town Manager
concerning the 1979 intergovernmental agreement between the Town of
Marana and Pima County relating to sewer service within the Marana town
limits and to direct the Town Manager and Town Attorney with respect to
that agreement (Frank Cassidy)
,OWN
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SPECIAL COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
December 11, 2007, at or after 6:00 p.m.
N. FUTURE AGENDA ITEMS
Notwithstanding the mayor's discretion of what items to place on the
agenda, if three or more council members request an item to be placed on
the agenda, it must be placed upon the agenda for the second regular
town council meeting after the date of the request (Marana Town Code,
Title 2, Chapter 2-4, Section 2-4-2 B)
0. ADJOURNMENT
TOWN COUNCIL N
MEETING TOWN OF MARANA N 7
INFORMATION
MEETING DATE: December 11, 2007 AGENDAITEM: J. 1
TO: MAYOR AND COUNCIL
FROM: Erik Montague, Finance Director
SUBJECT: Resolution No. 2007-221: Ordering and declaring formation of the
Gladden Farms (Phase 11) Community Facilities District;
approving and authorizing the execution and delivery of a District
Development, Financing Participation and Intergovernmental
Agreement (Gladden Farms (Phase 11) Community Facilities
District).
DISCUSSION
This resolution authorizes the execution of a District Development, Financing Participation and
Intergovernmental Agreement (Gladden Farms (Phase 11) Community Facilities District) (the
"CFD Agreement") concerning matters related to the creation of the Gladden Farms (Phase 11)
CFD. It also takes all steps necessary to order and declare formation of the Gladden Farms
(Phase 11) CFD. The Mayor and Council of the Town of Marana will serve as the Board of
Directors of the Gladden Farms (Phase 11) CFD (the "CFD Board"), the Town Manager will
serve as the CFD Manager, the Town Engineer will serve as the CFD Engineer, the Town
Attorney will act as the CFD Attorney, and the other Town officials will act in their same
capacity for the CFD. One or more of the CFD positions may eventually be contracted to outside
personnel; for example, it is likely that an outside engineering form will be substituted as CFD
Engineer, to accept and inspect public infrastructure acquired or constructed by the CFD.
By a resolution of its own, the CFD Board will schedule an election to authorize the sale of a
total of $60,000,000 in bonds over the life of this CFD. The CFD Agreement allows control by
the Developer until the first $20,000,000 in bond are issued or 20 years, whichever occurs first.
It is anticipated that this first $20,000,000 in bonds, if the CFD board decides to sell them, will
be used to reimburse the Developer for public infrastructure constructed by it, in and for the
benefit of Gladded Farms (Phase 11), including certain infrastructure addressed in Exhibit B to
the CFD Agreement, which must be provided by the Developer. The remaining bond
authorization will be available to fund later public infrastructure projects to the extent that they
benefit Gladden Farms (Phase 11).
These documents anticipate a maximum secondary tax rate of $2.80 per $100 of assessed
valuation, which includes $0.30 per $100 for operation and maintenance expenses. The actual
rate could go higher, if for some reason the total assessed valuation within the CFD falls or some
other unforeseen event makes it necessary to raise the tax rate to cover the bond obligations.
Gladden Farms (Phase H) CFD Formation 11120107 06:05pm EM
IT
The Developer's financial obligations under this documents or as a result of forming this CFD
include; (a) non-reftindable application fee of $75,000; (b) an annual obligation to pay up to
$ 100,000 in CFD operation and maintenance costs, to the extent such costs are not covered by
the $0.30 per $ 100 operation and maintenance tax; (c) deposit of $25,000 with the Town to cover
initial costs of the CFD prior to the levy of the $0.30 per $100 operation and maintenance tax;
(d) the obligation to provide standby contributions to cover any difference in the amount
necessary to pay amiual Jinancial obligations with respect to all outstanding bonds and the
amount generated by a tax rate of no more than $2.50 per $ 100 of assessed valuation; and (e) the
obligation, at the CVD Board's discretion, to deposit twice the maximum annual debt service for
any fiscal year (in addition to the reserve fund in the amount of up to one year's debt service paid
out of bond proceeds, at the discretion. of the CFD Board).
FINANCIAL IMPACT
No significant financial impact associated with the formation of the CFD.
ATTACHMENTS
Petition for Adoption of a Resolution Ordering and Declaring Formation of Gladden Farms
(Phase 11) Community Facilities District; and General Plan for the Proposed Gladden Farms
(Phase 11) Community Facilities District; Resolution No. 2007-221 ordering and declaring
formation of Gladden Farms (Phase 11) Comniunity Facilities District and approving and
authorizing the execution and delivery of a District Development, Financing Participation and
Intergovernmental Agreement (Gladden Farms (Phase 11) Community Facilities District)
RECOMMENDATION
Staff recommends the adoption of Resolution No. 2007-221.
SUGGESTED MOTION
move to approve Resolution No. 2007-22 1.
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MARANA RESOLUTION NO. 2007-221
A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE TOWN OF
MARANA, ARIZONA, A MUNICIPAL CORPORATION OF ARIZONA, ORDERING
AND DECLARING FORMATION OF GLADDEN FARMS (PHASE II) COMMUNITY
FACILITIES DISTRICT AND APPROVING AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A DISTRICT DEVELOPMENT, FINANCING PARTICIPATION
AND INTERGOVERNMENTAL AGREEMENT (GLADDEN FARMS (PHASE II)
COMMUNITY FACILITIES DISTRICT)
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
TOWN OF MARANA, ARIZONA, as follows:
Findings.
a. On a date prior to the date. of the adoption
hereof, there was presented to us, the governing body of the
Town of Marana, Arizona, an incorporated municipality of the
State of Arizona (hereinafter called the "Municipality"), a
Petition for Adoption of a Resolution Declaring Formation of
Gladden Farms (Phase I.I) Community Facilities District, dated as
of even date herewith (hereinafter ref erred to as the
"Petition"), signed by the entities which, on the date hereof,
are the owners of all real property as shown on the assessment
roll for State and county taxes for Pima County, Arizona, or, if
such persons shown on such assessment roll are no longer the
owners of land in Gladden Farms (Phase II) Community Facilities
District are the entities which are the successor owners which
have become known and have been verified by recorded deed or
similar evidence of transfer of ownership to be the owners of
such real property (hereinafter referred to as, collectively,
the "Petitioners") described in the Petition by metes and bounds
to be in the community facilities district, the formation of
which is prayed for by the Petitioners in the Petition, pursuant
to Title 48, Chapter 4, Article 6, Arizona Revised Statutes, as
amended (hereinafter referred to as the "Act").
b. The Petitioners have requested the
following:
I.
The name of the community facilities
district of which formation is prayed
pursuant, to the Petition to be "Gladden
Farms (Phase II) Community Facilities
District" (hereinafter called the
"District"),
The District to be formed and exist
pursuant to the terms and provisions of the
Act as. such terms and provisions are
modified, waived or restricted pursuant to
agreements to be entered into by and among
the Petitioners, the Municipality and the
District,
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The District to contain an area of
approximately 604 acres of land, more or
less, wholly within the corporate boundaries
of the Municipality and to be composed of
the land included in the parcels described
by metes and bounds as provided in Exhibit
"A" to the Petition, which is made a part of
the Petition f or all purposes and is all the
land to be included within the boundaries of
the District (hereinafter referred to as the
"Property"),
IV.
The District to be a special purpose
district for purposes of Article IX, Section
19, Constitution of Arizona, a tax levying
public improvement district for the purposes
of Article XIII, Section 7, Constitution of
Ari.zona, and a municipal corporation for all
purposes of Title 35, Chapter 3, Articles 3,
3.1, 3.2, 4 and.5, Arizona Revised Statutes,
as amended; except as otherwise pro I vided in
the Act, to be considered a municipal
corporation and political subdivision of the
'State of Arizona, separate and apart from the
Municipality; and to be formed for, and to
3
have, all the purposes of a "district" as
sUch term is defined, and as provided, in
the Act,
V.
The formation of the District to result
in the levy of ad valorem taxes to pay costs
of improvements constructed by the District
and for their operation and maintenance,
Vi.
The Clerk of the Municipality to accept
the filing of a "General Plan for Community
Facilities District" for the District
setting out , a general description of the
improvements for which the District is
proposed to be formed and the general areas
to be improved (hereinafter referred to as
the "General Plan"), and
VII.
The Municipality to determine that
public convenience and necessity require the
adoption of this Resolution.,
C. The Petitioners further attested and
declared that on the date hereof, as shown on the assessment
roll for State and county taxes in Pima County, Arizona, the
Property is owned by the Petitioners and shall be benefited from
4
the improvements for which the District is proposed to be
f ormed; that there are no residents on the Property and there
shall be no residents within fifty (50) days preceding th e first
anticipated election of the District; that the District shall be
formed and exist pursuant to the terms and provisions of the Act
as. such terms and provisions are modified, waived or restricted
pursuant to agreements to be entered into by and among the
Petitioners, the Municipality and the District; that public
convenience - and necessity require the adoption of this
Resolution; and that the Municipality shall in no way be liable
for the payment of any of the costs of the public infrastructure
described in the General Plan, nor liable for any liability,
debt or obligation of the District.
d. Af ter showing the preceding, the Petitioners
respectfully prayed that the Petition be properly filed as
provided by law and -that., as the Petition is signed by all of
the owners of the Property and there are not now, and shall not
be within fifty (50) days preceding the first anticipated
election of the District, residents on the Property, any
requirements of posting, publication, mailing, notice, hearing
and election otherwise required by the Act in connection with
the adoption of this Resolution are waived, the Municipality, on
receipt of the Petition, declare the District formed without
being required to comply with such provisions for posting,
publication,' mailing, notice, hearing or election.
5
e. Pursuant to the Act. and Section 9-500.05,
Arizona Revised Statutes, as amended, the Municipality, the
District, FC/M Gladden II, LLC (hereinafter called "FC/M
,Gladden"), Forest City Land Group, Inc. (hereinafter called
"Forest City"), and Marana EP Investors, LLC (hereinafter called
"Marana, EP") are entering into a "development agreement" to
specify, among other things, conditions, terms, restrictions and
requirements for "public infrastruct ure" (as such term is
defined in the Act) and the financing of public i*nfrastructure
and subsequent reimbursements or repayments over time.
f. With regard to the real property included
within the boundaries of the. District, the Municipality, FC/M
Gladden, Forest City and Marana EP determined to specify some of
such matters in such an agreement, par ticularly matters relating
to the acquisition or construction of certain public
infrastructure by the District, the acceptance thereof by the
Municipality and the reimbursement or repayment of FC/M Gladden
with respect thereto, all pursuant to the Act.
9- Pursuant to the Act and Title 11, Chapter 7,
Article 3, Arizona Revised Statutes, as amended, the District,
and the Municipality may enter into an "intergovernmental
agreement" with one another for joint or cooperative action for
services and to jointly exercise any powers common to them and
for the purposes of the planning,, design, inspection, ownership,
control, maintenance, operation or repair of public
infrastructure.
6
h Pursuant to the Act, the District may also
enter into an agreement with FC/M Gladden, Forest City and
Marana EP with respect to the advance of moneys for public
infrastructure purposes and the repayment of such advances and
to obtain credit enhancement for, and process disbursement and
investment of proceeds of, general obligation bonds of the
.District to be hereafter issued.
i. There has been presented to us in connection
with the purposes described in paragraphs I.e. through h. a
District Development, Financing Participation and
Intergovernmental Agreement (Gladden Farms (Phase II) Community
Facilities District), to be dated as of 1, 2007
(hereinafter referred to as the "Development Agreement"), by and
among the Municipality, the District, FC/M Gladden, Forest City
and Marana EP.
2. Matters Noticed by the Municipality.
a. The Petitioners seek formation of the
District to ex ercise the powers and functions set forth in the
Act as such powers and functions are modified, waived or
restricted pursuant to agreements to be entered into by and
among the Petitioners, the Municipality and the District.
b. The General Plan has been filed with the
Clerk of the Municipality.
C. The Petition and all necessary supporting
materials have been filed with us, and the showings in the
7
Petition are each noticed by us and are hereby incorporated at
this place as if set forth hereat in whole.
d. The purposes for which organization of the
District is sought are as described in the Petition and are
purposes for which a distr-Ict created pursuant to the Act may be
lawfully formed.
e. The public convenience and necessity require
us to adopt this Resolution.
3. Granting of Petition; Formation of District. The
Petition attached hereto as Exhibit "All and made a part hereof
for all purposes is hereby granted, and the District is hereby
formed as a district pursuant to the terms and provisions of,
and with the powers and authority established by, the Act,
subject to the restrictions and modifications set forth in the
Petition, with jurisdiction over the Property and that, as the
Petition is signed by the owners of the Property and there are
not now, and shall not be within fifty (50) days preceding the
first anticipated election of the District, residents on the
Property, requirements of posting/ publication, mailing,
notices, hearing and election otherwise required by the Act with
respect to formation of the District are hereby found to be
unnecessary.
4. District Board and Officers. The District shall
be governed by a "District Board" comprised of the members of
the governing body of the Municipality, ex officio. The Mayor
of the Municipality shall be the "Chairperson of the District
8
Board"; the Vice Mayor of the Municipality shall be the "Vice
Chairperson of the District Board"; the Town Clerk of the
Municipality shall be the "District Clerk"; the Town Treasurer
of the Municipality shall be the "Di.strict Treasurer"; the Town
Manager of the Municipality shall be the "District Manager"; the
Finance Director of the Municipality shall be the "District
Chief Financial Officer" and the Town Attorney of the Munic-
ipality shall be the "District Counsel."
?5. District Boundaries and Map. The District
boundaries are as described in Exhibit "A" to the Petition. A
map showing the Distr'ict boundaries is hereby ordered to be
drawn and provi'ded by the District Manager.
6. Distemination of this Resolution. The
Petitioners shall cause a copy of this Resolution to be
delivered to the County Assessor and the Board of Supervisors of
Pima County, Arizona, and to the Department of Revenue of the
State of Arizona.
7. Authorization and Approval of Development
Agreement. The Development Agreement is hereby approved in
substantial ly. the form submitted herewith, with such changes,
additions, - deletions, insertions and omissions, if any, as the
Mayor of the Municipality, with the advice of the Town Manager
of the Municipality and the Town Attorney of the Municipality,
shall authorize, the execution and delivery of, the Development
Agreement to be? conclusive evidence of the propriety of such
document and the authority of the persons or persons executing
9
the same. The Mayor of the Municipality,,, with the advice of the
Town Manager of the Municipality and the Town Attorney of the
Municipality, is hereby authorized and directed to execute, and
the Town Clerk of the Municipality to attest and deliver, the
Development Agreement on behalf of the Municipality.
8. No Liability of or for the Municipality. Neither
the Municipality nor the State of Arizona or any political
subdivision of either (other than the District) shall be
directly, indirectly or morally liable or obligated for the
costs of the public, infrastructure contemplated by the General
Plan and the Development Agreement nor for the payment , or
repayment of any indebtedness, liability, cost, expense or
obligation of the District, and neither the credit nor the
taxing power of the Municipality, the State of Arizona or any
political subdivision of either (other than the District) shall
be pledged therefor.
9. Effect of Resolution. a. If any section,
paragraph, clause or provision of this Resolution shall for any
reason be held to be invalid or -unenforceable, the invalidity or
unenforceability of such section, paragraph, clause -or provision
shall not-affect any remaining provisions.of this Resolution.
b. All resolutions or parts thereof
inconsistent herewith are hereby waived to the extent only of
such inconsistency.
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PASSED by the Mayor and Common Council of the Town of
Marana, Arizona, this 4th day of December, 2007.
ATTEST:
Mayor Ed Honea, Town of Marana
...........................................................
Jocelyn C. Bronson, Town Clerk
Town.of Marana, Arizona
APPROVED AS TO FORM:
.....................................................
Frank Cassidy, Town Attorney
Town of Marana, Arizona
REVIEWED BY:
........................................... I ...... ; ...........
Michael A. Reuwsaat, Town Manager
Town of Marana, Arizona
ATTACHMENTS:
EXHIBIT A Conformed Copy of Petition for Adoption of this
Resolution
327866321.1-10/9/20.07
11
EXHIBIT "A"
CONFORMED COPY OF PETITION
FOR ADOPTION OF THIS RESOLUTION
A-1
PETITION FOR ADOPTION OF A RESOLUTION
ORDERING AND DECLARING
FORMATION OF
GLADDEN FARMS (PHASF II) COMMUNITY FACILITIES DISTRICT
STATE OF ARIZONA
COUNTY OF PIMA ss.
TOWN OF MARANA
THE UNDERSIGNED OWNERS OF ALL OF THE LAND (hereinafter
referred to as, collectively, "Petitioners") in the parcel hereinafter
described, except for the exclusions described by metes and bounds,
acting pursuant to the provisions of Title 48, Chapter 4, Article 6,
Arizona Revised Statutes, as amended (hereinafter referred to as the
"Act"), respectfully petition The Honorable Town Council of the Town
of Marana, Arizona (hereinafter referred to as the "Municipality"), to
adopt a resolution (hereinafter referred to as the "Resolution")
declaring and ordering formation of a cormnunity facilities district
(hereinafter referred to as the "District") and would respectfully
request the following with respect thereto:
I.
The name of the District to be "Gladden Farms (Phase II)
Community Facilities District,"
328033685vt 1214/2007
Ii.
The District to be formed and exist pursuant to the terms
and provisions of the Act as such terms and provisions are modified,
waived or restricted pursuant to agreements to be entered into by and
among Petitioners, the Municipality and the District,
III.
The District to contain an area of approximately 604 acres
of land, more or less, wholly within the corporate boundaries of the
Municipality and to be composed of the land included in the parcel,
except for the exclusions described by metes and bounds, as provided
in Exhibit "A" hereto, which is made a part hereof for all purposes,
IV.
The District to be a special purpose district for purposes
of Article IX, Section 19, Constitution of Arizona, a tax levying
public improvement district for the purposes of Article XIII, Section
7, Constitution of Arizona, and a municipal corporation for all
purposes of Title 35, Chapter 3, Articles 3, 3.1, 3.2, 4 and 5,
Arizona Revised Statutes, as amended; except as otherwise provided in
the Act, to be considered a municipal corporation and political
subdivision of the State of Arizona, separate and apart from the
Municipality; and to be formed for, and to have, all the purposes of a
"district" as such term is defined, and as provided, in the Act,
2
3280336&5vi 12/4/2007
V.
The formation of the District to result in the levy of ad
valorem taxes to pay costs of improvements constructed by the District
and for their operation and maintenance,
VI.
Before the Resolution is adopted, the Clerk of the
Municipality to accept the filing of a "general plan" (as such term is
defined in the Act and hereinafter referred to as the "General Plan")
for the District setting out a general description of the improvements
for which the District is proposed to be formed and the general areas
to be improved, and
VII.
The Municipality to determine that public convenience and
necessity require the adoption of the Resolution;
WHEREFORE, Petitioners attest and declare that on the date
hereof, as shown on the assessment roll for State and county taxes in
Pima County, Arizona, all of the land to be in the District is owned
by Petitioners or, if a person listed on such assessment roll is no
longer the owner of land in the District, that the name of the succes-
sor owner has become known and has been verified by recorded deed or
other similar evidence of transfer of ownership to be Petitioners;
that there currently are no residents on the land to be in the Dis-
trict and there shall be no residents within fifty (50) days preceding
the first anticipated election for the District; that the land to be
included in the District shall be benefited from the improvements for
3
328033685vl 12/412007
which the District is proposed to be formed; that the District shall
be formed and exist pursuant to the terms and provisions of the Act as
such terms and provisions are modified, waived or restricted pursuant
to agreements to be entered into by and among Petitioners, the
Municipality and the District; that public convenience and necessity
require the adoption of the Resolution; and that the Municipality
shall in no way be liable for the payment of any of the costs of the
public infrastructure described in the General Plan, nor liable for
any liability, debt or obligation of the District;
WHEREFORE, as this Petition is signed by the owners of all
the land to be in the District and there are not now, and shall not be
within fifty (50) days preceding the first anticipated election of the
District, residents on the land in the District, any requirements of
posting, publication, mailing, notice, hearing and election otherwise
required by the Act in connection with adoption of the Resolution are
waived, and the Municipality may, on receipt of this Petition, adopt
the Resolution to declare the District formed without being required
to comply with such provisions for posting, publication, mailing,
notice, hearing or election; and
WHEREFORE, Petitioners respectfully pray that this Petition
be properly filed as provided by law; that the Municipality adopt the
Resolution and declare and order the District formed without being
required to comply with the provisions for posting, publication, mail-
ing, notice, hearing and election otherwise required by the Act in
connection with the Resolution; and that such other orders, acts,
procedure and relief as are proper, necessary and appropriate to the
4
328033685vl 12/4/2007
purposes of organizing the District and to the execution of the
purposes for which the District shall be organized be granted as The
Honorable Town Council of the Municipality shall deem proper and
necessary.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
5
328033685vl 12/4/2007
RESPECTFULLY SUBMITTED this 0 day of D%. aw-0er, 2007,
FC/M GLADDEN II, LLC, all Arizona 11inited
liability company
By: its Managing blember, Foreat City Land
Group, Inc., an Ohio corporation
.............
NORTHWEST HOSPITAL, LLC, a Delaware limited
liability company
4ame
Print;d tiam.
Title: ... QU:iAgrk ...........................
5
The undersigned, as beneficiary and assignee under the
following encumbrances, hereby consent to and join in the foregoing
Petition and to the provisions thereof:
Deed of Trust, dated July 29, 2005, from FC/M
Gladden II, LLC to Fidelity National Title
Insurance Company for the benefit of Residential
funding Corporation, recorded on July 29, 2005,
in Docket 12605, page 6002 of the Office of the
Recorder of Pima County, Arizona
Dated: MO-. .2". . .... 2007
BENEFICIARY:
RESIDENTIAL FUNDING CORPORATION, a
Delaware corporation
Pr t Na
?a
t e.
le: re. ^nAV
Assignment of Beneficial Interest recorded on
August 26, 2005, in Docket 12625, Page 6005 under
Deed of Trust, dated July 29, 2005, from FC/M
Gladden II, LLC to Fidelity National Title
Insurance Company for the benefit of Residential
Funding Corporation, recorded on July 29, 2005,
in Docket 12605, page 6002 of the Office of the
Recorder of Pima County, Arizona
Dated: . &A' V . .44 ... 1 200-7
ASSIGNEE:
RFC CONSTRUCTION FUNDING CORPORATION,
a Delaware corporation
By .. ....
Pr eW-N
T 1 ... . ........................
STATE OF ARIZONA
COUNTY OF PIMA
The fore . i t ant was acknowledged before me on this
day of . . ... $- 2007, by Dean Wingert, Vice
90jq r
Pxesi?;n't- of Forest City Land' Group, Inc., an Ohio corporation,
managing member of FC/M Gladden II., LLC, an Arizona limited liability
company, on behalf of the limited liability company.
My commission expires;
... ILI,.5-0009 ........
STATE OF
COUNTY OF
KOM Kt4tAfti.
Notary ublic Nolery KbIlo - Atizon..
PIMACOUNTY
1661on EXPI 1 (06
MBER 16, 20DO
6,6013
4, The for
.,A agoing ins?rument was acknowledged before.mg on this
.... IA I day of . . 4) e eert7.&VI 2007, by
.................... an authorized representative of NnrI-hwP-&-j-
'.C- . , 0- C00W01re limAilmd KGVW?j covAqwkj.
IN WITNESS WHEREOF, I hereunto sat my hand and official
seal.
..................... ........
No paryvi?vblic
14y commission 8XPire3;
.46- .-/ -??a/ P, A4144
- ?M,144,
STATE
Est;
0, - My Commission
T NNer
E y
;E E Expires
NOTAR
PUBLIC .",)November 7, 2011
7
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me on this
day of ......... 2007, by
** ........ an authorized representative of Residential
Funding Corporation, a Delaware corporation.
seal.
IN WITNESS WHEREOF, I hereunto set my hand and official
my commission expires;
... 7.1.1,212001" .......
STATE OF
COUNTY OF
...........
Notary Public
Blip,
%
t
ty
The foregoing instrument was acknoWledgyd before me on this
-114 * Po
day of t4.P.V?<? ? ........ 2 0 0 7, by . . "?? " ?? C.- . ? i L
I .... an authorized representative of RFC Construction
;?n*d*in*g-C'o*r'p'o*r'ation, a Delaware corporation,
seal.
IN WITNESS WHEREOF, I hereunto set my hand and official
my commission expires:
OTA/?
71. i.? 2?'Z)0 I ....... %
b % U at)o 4*1
ATTACHMENT: 0,
EXHIBIT A - Legal Description Of Property To Be Included The
District
321866336.1-IW/2007
8
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY TO
BE INCLUDED IN THE DISTRICT
Blocks 26 thru 43 of Gladden Farms Blocks 26-43, as shown on the plat
recorded in Book 62 of Maps and Plats, Page 64, records of Pima
County, Arizona;
EXCEPT for the following described parcel:
COMMENCING at the most Northerly corner of Block 30 of said
subdivision;
THENCE South 00030109" East 838.61 feet upon the West line of said
Block 30 to the POINT OF BEGINNING;
THENCE North 89029151" East 100.00 feet;
THENCE South 00030'09" East 35.00 feet;
THENCE South 89029'51" West 100.00 feet;
THENCE North 00030'09" West 35.00 feet to the POINT OF BEGINNING.
A-1
328033685vi 12/4/2007
0- N 0
TOWN COUNCIL
MEETING TOWN OF MARANA MARANA
INFORMATION
MEETING DATE: December 11, 2007 AGENDAITEM: J. 2
TO: MAYOR AND COUNCIL
FROM: Gilbert Davidson, Deputy Town Manager
SUBJECT: Resolution No. 2007-222: Relating to Development; support of the
relocation of the existing Tangerine Road Interchange
DISCUSSION
On September 18, 2007 Mayor and Council approved Resolution No. 2007-164, which set a
distance for a relocated Tangerine Interchange of 2575' north of the existing interchange along I-
10. There has been some confusion about whether this is a new interchange or a relocation of
the existing interchange. The original intent was that this is a relocation. Although a new
location, the final interchange will still bear the name "Tangerine." The ramps to the existing
interchange will be removed as part of the project. The existing underpass will remain for
regional circulation but to the Interstate traveler the new location will unnoticeable.
For absolute clarity, staff is asking Mayor and Council to show support for a relocated Tangerine
Road Interchange to remove confusion about this issue.
SUGGESTED MOTION
I move to approve Resolution No. 2007-222.
Tangerine Intersection Relocation
MARANA RESOLUTION NO. 2007-222
RELATING TO DEVELOPMENT; SUPPORT OF THE RELOCATION OF THE TANGERINE
INTERCHANGE
WHEREAS, the Tangerine Interchange will be in need of upgrades for capacity due to growth
around the interchange; and
WHEREAS, the relocation of the interchange is the most effective way to achieve such an
upgrade from a cost and impact to the public standpoint; and
WHEREAS, the Town has met with surrounding stakeholders to lay out a relocation of the
interchange that improves traffic circulation/flow to all commercial entities, bridges together West and
East Marana, ensures that other proposed interchanges in Marana are not impacted, and minimizes
railroad impacts/delays for commuters; and
WHEREAS, the Town has consulted with the Arizona Department of Transportation to ensure
that the relocated interchange is compatible with their long range plans for an outer loop corridor; and
WTIEREAS, the Town passed resolution 2007-164 on September 18, 2007 which set the
relocated interchange Two Thousand five hundred and seventy five feet (2575) north of the existing
Tangerine Interchange along Interstate 10
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN
OF MARANA, ARIZONA, that a relocated Tangerine Road interchange is fully supported by the Town
of Marana.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this I I 1h day of December, 2007.
Mayor Ed Honea.
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
Tangerine Interchange-resolution2007-12-1 Ldoe
TOWN COUNCIL
MEETING TOWN OF MARANA 9M R I N , 7
INFORMATION
MEETING DATE: December 11, 2007 AGENDAITEM: J. 3
TO: MAYOR AND COUNCIL
FROM: Frank Cassidy, Town Attorney
SUBJECT: Relating to Development; discussion and direction concerning en-
tering into a proposed retail tax incentive development agreement
regarding the Marana Spectrum project.
DISCUSSION
At the December 4, 2007 Council meeting, the Council adopted Resolution No. 2007-220, giving
notice of intent to enter into a retail tax incentive development agreement regarding the Marana
Spectrum project, and requested that the draft agreement be presented to Council at a Decem-
ber I I special session to discuss the terms of the agreement.
The agreement requires the developer to construct or to contribute toward public infrastructure
improvements in the total amount of just under $18,000,000, and calls for reimbursement out of
45% of the retail sales tax generated from the project until the earlier of (i) reimbursement of
$30,000,000, (ii) fifteen years after completion of the Twin Peaks Traffic Interchange, or
(iii) twenty years after the effective date of the development agreement.
The $30,000,000 total reimbursement amount takes into account the time value of money to the
developer from the time the developer incurs the financial burden of funding the public infra-
structure improvements to the probable date of reimbursement through retail sales tax generated
from the project.
A straight fifteen-year amortization of the approximately $18,000,000 at 6.5% interest calculates
to just over $9,000,000 in interest. However, a couple of years will likely pass between the time
the public infrastructure expenses are incurred by the developer and the first retail sales tax re-
imbursement, and (unlike a straight amortization payback) sales tax reimbursements will at first
trickle in based on the relatively small amount of anticipated retail sales occurring within the
project in its early stages. Most of the reimbursement will occur toward the end of the fifteen-
year period. As a consequence, staff estimates that the developer's total carrying cost calculated
at an interest rate of 6.5% compounded will be at or over $30,000,000.
To simplify the accounting process and to avoid the need to have the Town's Finance Depart-
ment receive progress payment requests and to monitor total developer expenditures and ongoing
interest accumulation, Town staff concluded that the most efficient way to address the devel-
oper's contribution toward public infrastructure improvements was simply to cap the reimburse-
ment at the developer's calculated overall financial burden of $30,000,000.
(00007214.DOCI) FJClcds 1216107
Staff and the developer's representative will be available to respond to any questions the Coun-
cilmembers may have.
RECOMMENDATION
Staff recommends that the Marana Spectrum development agreement be brought back to Council
for consideration'and possible approval at its December 18, 2007 meeting.
FINANCIAL IMPACT
Up to $30,000,000. If the full $30,000,000 is paid, the Town's 55% share of sales tax from the
project during the payback will be $36,666,667. The Town may not receive any sales tax from
the property if the development agreement is disapproved, and the developer chooses not to pro-
ceed with the development.
ATTACHMENT(S)
Development Agreement with Exhibits
SUGGESTED ACTION
Council's pleasure.
(00007214.DOCI) -2-
MARANA SPEcTRum DEVELOPMENT AGREEMENT
TowN OF MARANA, AmZONA
I This Development Agreement (this "Agreement") is entered into by and between the TowN
OF MARANA, an Arizona municipal corporation (the "Town") and Kimco BARcLAY MARANA,
L.P., a Delaware limited partnership (the "Owner/Developef"). The Town and the
Owner/Developer are collectively referred to in this Agreement as the "Parties," and each is
sometimes individually referred to as a 'Tarty."
RECITALS
A. Owner/Developer Was formed and exists for the purposes of owning and developing
approximately 170 acres of real property located within the corporate limits of the Town (the
"Property").
B. Owner/Developer intends and desires to develop a regional lifestyle/entertainment/power
retail shopping center on the Property containing approximately 1,200,000 square feet (the
"Development").
C. The Property and the proposed Development were included in and subject to the
provisions of the Marana Spectrum Specific Plan (the "Marana Spectrum Plan"), approved by
the Town on August 7, 2007 pursuant to Ordinance No. 2007.19.
D. The Property is legally described in Exhibit A attached to this Agreement.
E. The Town and Owner/Developer desire to establish certain agreements regarding the
Development pursuant to A.R.S. § 9-500.05 and certain agreements in connection with
development activities for the economic benefit of the Town pursuant to A.R.S. § 9-500.11 upon
and in accordance with the terms and conditions set forth in this Agreement.
F. The Development is consistent with the Town's long-term economic development
strategies and is expected to create a source of significant tax revenue for the Town for many
years.
G. The Development will have a substantial positive economic impact on the Town because
it is expected to provide diverse commercial and retail service opportunities consistent with the
businesses targeted by the Town. The facilities to be constructed as part of the Development are
expected to produce a significant number of new jobs and generate substantial sales tax
revenues. Consequently, the short-term and long-term benefits of the Development will offset
and significantly outweigh the costs of the reimbursements provided by the Town under this
Agreement.
H. The Development will provide significant intangible benefits to the Town as a retail
lifestyle/entertamment/power center and may also include mixed use, hotel, office and residential
components.
(WWW/l.L)OC/21 , 11/7/20075:09PM
MARANA SpEcmum DEvELopmENT AGREEmENT
1. The Development is in compliance with the Town's adopted and approved General Plan
(as defined in A.R.S. § 9
-461).
J. The Town is authorized by A.R.S. § 9-500.05 to enter into a development agreement with
a landowner or other person or entity having an interest in real property located within the Town
to facilitate development of the property by providing for, among other things, the conditions,
terms, restrictions, and requirements for development and public infrastructure and the financing
of public infrastructure. Because of its location and typography, the Development will entail
significant atypical additional offsite and site costs requiring reimbursement for feasible
development.
K. In approving this Agreement, the Town Council has found and determined that certain
activities relating to the Development are economic development activities within the meaning of
A.R.S. § 9-500.11, that all expenditures by the Town pursuant to this Agreement constitute the
appropriation and expenditure of public monies for and in connection with economic
development activities and that it is appropriate to provide Owner/Developer with the
reimbursement in this Agreement as an inducement to cause Owner/Developer to construct, own
and operate the Development in the Town.
L. The Town adopted a notice of intent to enter into this Agreement not less than 14 days
before the Town Council approved this Agreement, in compliance with A.R.S. § 9-500.11.
M. The Town Council finds that the Development will raise more revenue for the Town than
the amount of the reimbursements to the Owner/Developer within the duration of this
Agreement.
N. An independent third party not financed by the Owner/Developer has verified the Town
Council's finding that the Development will raise more revenue for the Town than the amount of
the reimbursements to the Owner/Developer within the duration of this Agreement.
0. The Town Council finds that in the absence of the reimbursements to the
Owner/Developer provided pursuant to this Agreement, the Development would not locate in the
Town in the same time, place or manner as it will with the reimbursements to the
Owner/Developer.
P. The Owner/Developer will incur out-of-pocket public infrastructure construction costs and
will make certain contributions for public infrastructure and environmental mitigation in the
immediate vicinity of and directly benefiting the. Development.
Q. The reimbursements to the Owner/Developer provided pursuant to this Agreement are
intended to reimburse the Owner/Developer for its out-of-pocket public infrastructure
construction costs and public infi-astructure and environmental mitigation contributions and
related interest and carrying costs, as described more specifically in this Agreement.
AGREEmENT
Now, THEREFORE, in consideration of the mutual promises made in this Agreement, the
Parties agree as follows:
Article 1. Background
1.1. Incon2oration of the Recitals. The foregoing Recitals are incorporated here by this
reference.
100006M.DOC / 2) 11/7/20075:09PM
MARANA SPECTRUM DEVEWPmENT AGREiEmENT
-2-
1.2. Proposed Uses. The Development is a retail center planned to accommodate a range of
differing but complementary retail-related land uses on an integrated and master-planned basis.
Typical uses envisioned in the center include destination and major anchor retailers not
otherwise found or clustered in the Town, lifestyle and other retail shops, restaurants,
entertaim-nent facilities, national electronic and other hard goods retailing, financial institutions
and other service businesses, landscaping, and distinctive common areas. The Development may
also include mixed use, hotel, office and residential components. Overall, the Development,
which will have a unique regional draw, will create substantial additional sales. tax revenues for
the Town, will assist in the creation or retention of jobs and will otherwise improve or enhance
the economic welfare of the residents of the Town by bringing customers to the Development
from the Town and surrounding communities. Exhibit B attached to this Agreement is a
conceptual description of the master site plan for the Development. This master site plan will be
updated in accordance with paragraph 2.3.2 below.
1.3. Definitions. The following definitions shall apply to this Agreement:
1.3. L "Anchor Tenant" means a retailer occupying -more than 80,000 square feet of
building area.
1.3.2. "Anchor Tenant Parcel" means any parcel in the Development owned, leased or
operated by an Anchor Tenant.
11.3.3. "Construction Sales Tax Revenues" mean those portions of the Town's transaction
privilege taxes (currently 4%) generated pursuant to Section 8-415 or 8-416 of theMarana
Tax Code from construction contracting or speculative builder activities occumng on the
Property.
1.3.4. "Developer Parcel" means any portion of the Property other than the Anchor
Tenant Parcels.
1.3.5. The "Developmenf' is defined in recital B above and described in Exhibit B and in
paragraph 1.2 above.
1.3.6. "Development Regulations" is defined in paragraph 2.1 below.
1.3.7. "Initial Development Plan" is defined in paragraph 2.3.1 below.
1.3.8. "Initial Minimum Improvements" is defined in paragraph 2.3.1 below.
1.3.9. "Interchange" means the currently planned freeway bridge and related ramps
commonly referred to as the "Twin Peaks TI," consisting of the approaches and interchange
system at approximately milepost 245 of Interstate 10, connecting Interstate 10 to Camino de
Maftana adjacent to the Property.
1.3. 10. The "Marana Spectrum Plan" is the Marana Spectrum Specific Plan, approved by
the Town on August 7, 2007 pursuant to Ordinance No. 2007.19 (see recital C above).
1.3.11. "Interest" or "Interest Rate" means interest on the applicable obligation or sum at
the rate of 6.5% per annum.
1.3.12. "Maximum Reimbursement Amount" means Thirty Million Dollars
($30,000,000).
JOW06M.DOC / 21 11/7/20075:09PM
MARANA SpEcTRum DEvimopmENT AGREEmENT
-3-
1.3.13. The "Property" is defined in recital A above and described in Exhibit A attached
to this Agreement.
1.3.14. "Public Improvements" means the improvements described on Exhibit C
attached to this Agreement (see paragraph 3.1 below).
1.3.15. "Public Improvement Costs" means all costs, expenses, fees and charges actually
incurred and paid by or on behalf of Owner/Developer to contractors, architects, engineers,
surveyors, governmental agencies, other professionals and consultants, and other third parties
for materials, labor, planning, design, engineering, surveying, site excavation and
preparation, govermnental permits and payments, payment and performance bonds, other
professional services, and all other costs and expenses related or incidental to and reasonably
necessary for, the acquisition, improvement, construction, installation, or provision of the
Public Improvements, together with all costs associated with the acquisition of lands, rights-
of-way and easements either to be dedicated to the Town or upon which Public
Improvements are to be constructed, with Interest as provided in this Agreement.
1.3.16. "Reimbursement Account" means a separate account within the Town's General
Fund or accounted for by an appropriate book or ledger entry designation for the purpose of
making Reimbursement Payments (see paragraph 6.2 below)
1.3.17. "Reimbursement Payments" is defined, in paragraph 6.4 below.
- 1.3.18. "Sales Tax Revenues" means that portion of the Town's transaction privilege
taxes (currently 2%) generated from the following activities occurring on the Property:
1.3.18. L Amusements, exhibitions and similar activities pursuant to Section 8-410 of
the Marana Tax Code.
1.3.18.2. Hotels pursuant to Section 8-444 of the Marana Tax Code.
1.3.18.3. Rentals pursuant to Section 8-445 of the Marana Tax Code.
1.3.18.4. Restaurants and bars pursuant to Section 8-455 of the Marana Tax Code.
1.3.18.5. Retail sales pursuant to Section 8-460 of the Marana Tax Code.
References to sections of the existing Marana Tax Code shall include corresponding
sections of,successor codes.
Article 2. Development ofthe Property.
2.1. Development RegWations. The development of the Property shall be governed by the
underlying zoming or land use designation and the standards provided for in the Marana
Spectrum Plan, including the Owner/Developer's design and development standards and
guidelines, as clarified and supplemented by this Agreement. The Marana Development Code,
including the written rules, regulations, substantive procedures, and policies relating to
development of land, adopted or approved by the Mayor and Council (collectively the "Marana
Development Code') in effect on the effective date of the Marana Spectrum Plan shall apply to
the extent not covered by the Marana Spectrum Plan or -this Agreement. In the event of any
express conflict, the terms of this Agreement and the Marana Spectrum Plan shall control over
the Marana Development Code. For purposes of this Agreement, the underlying zorning or. land
use designation shall mean full development, exclusive of voluntary limitations or restrictions,
under the controlling underlying zoning or land use designation included in the Marana
100006M.DOC / 21 MARANA SpEcmum DEvELopmENT AGREEmENT 11/7/2DO7 5:09 PM
-4-
Spectrum Plan, and if not so covered, under the Marana Development Code. All signage and
lighting standards shall be governed exclusively by the Marana Spectrum Plan for a period of
five years from the Effective Date of this Agreement. Anything else in this Agreement to the
contrary notwithstanding, the Town shall not apply any ordinances enacted after the Effective
Date of this Agreement which impose special limitations or restrictions on the development of
single user retail facilities in excess of a certain size limitation (such as 100,000 square feet or
more of retail space) for retail facilities on the Property. The immediately preceding sentence
shall terminate on the tenth anniversary of the Effective Date of this Agreement. The
requirements of this paragraph are collectively referred to as the "Development Regulations."
2.2. Development Review. The Property shall be developed in a manner consistent with the
Development Regulations and this Agreement, which together establish the basic land uses, and
the densities, intensities and development regulations that apply to the land uses authorized for
the Property. Upon the Owner/Developer's compliance with the applicable I development review
and approval procedures and substantive requirements of the Development Regulations, the
Town agrees to issue such permits or approvals for the Development as may be requested by the
Owner/Developer.
2.3. Initial Development Plan. As a condition precedent to the Owner/Developer's right to
receive and the Town's obligation to make Reimbursement Payments under Article 6 of this
Agreement, and not as a separate obligation, within 36 months of the date the Interchange is
completed by the Arizona Department of Transportation and first open for vehicular traffic and
use by the general public, the Owner/Developer shall prepare and submit to the Town the
following:
23. 1. A development plan (the "Initial Development Plan") for the initial construction of
the Development, consisting of at least 120,000 square feet of retail building space and
related parking, supporting infrastructure and amenities (the "Initial Minimum
Improvements").
2.3.2. An updated revised conceptual master site plan for the entire Development.
2.4. Minimum Construction Obligatio . As a condition precedent to the Owner/Developer's
right to receive and the Town's obligation to make Reimbursement -Payments under Article 6 of
this Agreement, and not as a separate contractual obligation, the Owner/Developer shall obtain
building permits for and begin construction of the Initial Minimum hnprovernents in a manner
consistent with the Initial Development Plan within twelve months after the later of (i) the
Town's approval of the Initial Development Plan or (ii) the Interchange is completed by the
Arizona Department of Transportation and first open for vehicular traffic and use by the general
public.
2.5. ' Cooperation. The Parties shall cooperate and share information and plans for the
construction of the Interchange and the construction of the Development, to assure coordination
between the Interchange construction and the development of the Development. This
coordination and information sharing shall include, without limitation, the Interchange height,
scope, ramps and curb cuts.
2.6. Abandonment Proceedings. The Town agrees to timely begin and diligently pursue
abandonment proceedings pursuant to A.R.S. § 28-7201 et seq. to abandon the existing Linda
Vista Road right-of-way to the extent it is located within the Development to the new alignment
100006M.DOC / 21 11/7/2DO75.09PM
MARANA SpEcTRum DEvELopmENT AGREEmENT
-5-
shown on the development plans for the Development. Owner/Developer acknowledges the
Town's obligation to proceed as required by law, including the need to address any rights of
property owners and utility companies that rely on the right-of-way sought to be abandoned, and
the Parties will cooperate in good faith to address those rights justly and appropriately while
working toward the goal of full abandonment through the Property.
2.7. Anchor Tenant's Ability to Develov Anchor Tenant Parcel. Any Anchor Tenant may
develop its Anchor Tenant Parcel independently of the development of the Developer Parcel and
any other Anchor Tenant Parcel. So long as it complies with applicable Town requirements any
Anchor Tenant shall be entitled to receive a building permit and certificate of occupancy for the
improvements to be constructed on its Anchor Tenant Parcel, whether or not Owner/Developer
shall have developed the Developer Parcel in accordance with this Agreement; provided,
however, that an Anchor Tenant's right to a certificate of occupancy shall be expressly
conditioned upon such Anchor Tenant's submission to and approval by the Town of a
development plan consistent with the Development Regulations and completion of. (i) the
building to be located on the Anchor Tenant Parcel; (ii) all other necessary improvements to the
Anchor Tenant Parcel; (iii) all drives, utilities and entrances serving the improvements on
Anchor Tenant Parcel; (iv) applicable amounts of perimeter sidewalks for the Development that
serve the Anchor Tenant Parcel; (v) applicable amounts of appurtenant landscaping -for entrances
and drives located on the Developer Parcel but serving Anchor Tenant Parcel; and (vi) offsite
improvements serving the Anchor Tenant Parcel set forth on the approved development plan for
the Anchor Tenant Parcel and provided fin-ther that the Town's standard bonding obligations
shall be enforced with respect to Anchor Tenant's completion of (i) through (vi) above. Further
in the event Owner/Developer is not performing under this Agreement with reference to any
obligations or improvements referenced in subparts (ii) through (vi) above, Anchor Tenant shall
have the right to cure such non-performance for a period of six months from the date of the
Town's written non-performance notice to Owner/Developer in accordance with paragraph 7.2
below.
Article 3. Owner/Developer's Contributions for Public Improvements
3.1. Public improvements Construction and Reimbursement. As a condition precedent to
receivmg Reimbursement Payments under Article 6 of this Agreement, and not as a separate
contractual obligation, the Owner/Developer shall, in conjunction with its construction of the
Development and in accordance with the State of Arizona and the Town public infrastructure
construction procurement laws and procedures:
3. 1. 1. Design and construct the Public Improvements described in Exhibit C attached to
this Agreement which are identified as being constructed by the Owner/Developer; and
3.1.2. Reimburse the Town, within sixty days of completion and written demand by the
Town, all costs of the Public Improvements described in Exhibit C attached to this
Agreement which are identified as being constructed by the Town; and
3.1.3. Pay all Public Improvement Costs as they become due.
3.2. Town Review and Approval of Plans. Except as expressly provided in this Agreement,
the development and construction of the Public Improvements is subject to the Town's normal
plan submittal, review and approval procedures and construction inspection requirements.
100006M.DOC / 21 MARANA SPECTRUM DEVELOPMENT AGREEMENT 11/7/20075:09PM
-6-
3.3. Town Construction. The Town shall timely construct all Public Improvements identified
as being constructed by the Town as set forth in Exhibit C to this Agreement.
Article 4. Owner/Developer's Environmental Mitigation Contribution
As a condition precedent to receiving Reimbursement Payments under Article 6 of this
Agreement, and not as a separate contractual obligation, the Owner/Developer shall make a cash
contribution of $456,000 to the Town to be used for acquisition of environmentally. sensitive
lands for the preservation of species native to the general area of the Development.
Article 5. Owner/Developer's Payment of Development Impact Fees
5.1. Water Impact Fees. The only Town development impact fees adopted by the Town
pursuant to A.R.S. § 9-463.05 and currently applicable to the Development are the Gravity
Storage and Renewable Water Resource Fee and the Water System Infrastructure Impact Fee,
adopted by Marana Ordinance No. 2005.25.
5.2. Other !Mpact Fees. Except as specifically provided in the first sentence of paragraph 5.1
above, no surcharge, development fees or impact fees, exactions or impositions of any kind
whatsoever for water, sewer, utilities, streets or other transportation systems, parks, preserves,
storm sewers, flood control, public safety or other public services or any other infrastructure cost
or expense shall be chargeable to the Owner/Developer or to a?y owner, lessee or occupant of
the Development until the ninth anniversary of the Effective Date of this Agreement.
Article 6. Town Reimbursement to Owner/Developer
6.1. Maximum Reimbursement Amount. The Maximum Reimbursement Amount shall be
Thirty Million Dollars ($30,000,000), which is -the Parties' good faith current estimate of the sum
of the following:
6. 1. 1. The Owner/Developer's Public Irnprovement Costs and reftnbursements to the
Town for Public Improvements (see Article 3 and paragraph 1.3.15 above).
6.1.2. The Owner/Developer's cash contribution to the Town for acquisition of
environmentally sensitive lands (see Article 4 above).
6.1.3. 'fhe total amount of all development impact fees actually charged to the
Development and paid by the Owner/Developer or any other owner, tenant or occupant of the
Development (see Article 5 above).
6.1.4. Interest on the fore going amounts at the Interest Rate.
6.2. Reimbursement Account. The Town shall deposit into the Reimbursement Account 45%
of the Sales Tax Revenues (see paragraph 1.3.18 above) as they are received from the Arizona
Department of Revenue, beginning with the first such revenues generated from the Property and
ending upon the earlier of the following:
6.2. 1. The expiration of this Agreement.
6.2.2. When the total cumulative amount deposited in the Reimbursement Account equals
the Maximum Reimbursement Amount.
Such amounts shall be reimbursed to the Owner/Developer pursuant to paragraph 6.4 below.
100006M.DOC 21 11/7/2007 5-09 PM
MARANA SpEcTRum DEvELopmENT AGREEmENT
-7-
6.3. No Reimbursement Out of Construction Sales Tax Revenues. No portion of any
reimbursement under this Article shall consist of Construction Sales Tax Revenues (see
paragraph 1.3.3 above).
6.4. Reimbursement PgMents. The Town. shall pay to the Owner/Developer within the first
45 days of each calendar quarter all funds in the Reimbursement Account ("Reimbursement
Payments"), beginning the first calendar quarter after the later of (i) Town's issuance of the
certificate of occupancy for the last building constructed as the Initial Minimum Improvements
as shown on the Initial Development Plan (see paragraph 2.3.1 above) or (ii) the
Owner/Developer's satisfaction of all conditions precedent to receiving Reimbursement
Payments as set forth in this Agreement. Any funds accrued in the Reimbursement Account but
not yet disbursed to the Owner/Developer upon the expiration of this Agreement shall be paid to
Owner/Developer within thirty days after the expiration of this Agreement.
6.5. Owner/Developer Audi . Not more t han once each calendar year, the Owner/Developer
may, at its own cost, audit Town sales tax returns and other appropriate financial records of the
Town to, assure prompt and accurate deposit into the Reimbursement Account of all revenues as
required pursuant to this Agreement.
6.6. Annual Rgport. Within 45 days following the end of each Town fiscal year, the Town
shall deliver to the Owner/Developer a report of all Sales Tax Revenues generated by or
attributable to the Development which have been utilized by the Town in determining the
amount deposited into the Reimbursement Account.
6.7. Limitations. During the Tenn of this Agreement, the Town shall not enter into any
agreement or transaction which impairs the rights of Owner/Developer under this Agreement,
including, without limitation, the right to receive the Reimbursement Payments and the proceeds
of the Reimbursement Account in accordance with the procedures established in this Agreement.
Article 7. Cooperation and Alternative Dispute Resolution.
7.1. A
Mointment of Rgpresentatives. To finther the commitment of the Parties to cooperate
in the progress of the Development, the Town and the Owner/Developer each shall designate and
appoint a representative to act as a liaison between the Town and its various departments and the
Owner/Developer. The initial representative for the Town (the "Town Representative") shall be
the Planning Director, and the initial representative for the Owner/Developer shall be Trey Eakin
or a replacement to be selected by the Owner/Developer. The representatives shall be available at
all reasonable times to discuss and review the performance of the Parties to this Agreement and
the development of the Property.
7.2. Non-Performance, Remedies. If either, Party does not perform under this Agreement (the
"Non-Performing Party") with respect to any of that Party's obligations under this Agreement,
the other Party (the "Demanding Part-y") shall be entitled to give written notice in the manner
prescribed in paragraph 8.29 below to the Non-Performing Party, which notice shall state the
nature of the non-performance claimed and make demand that such non-performance be
corrected. The Non-Performing Party shall then have (i) twenty days from the date of the notice
within which to correct the non-performance if it can reasonably be corrected by the payment of
money, or (ii) thirty days from the date of the notice to cure the non-performance if action other
than the payment of money is reasonably required, or if the non-monetary non-performance
cannot reasonably be cured within thirty days, then such longer period as may be reasonably
100006071.DOC 21 11/7/20075:09PM
MARANA SPECTRUM DEVELOPMENT AGREEMENT
-8-
required, provided and so long as the cure is promptly commenced within thirty days and
thereafter diligently prosecuted to completion. If any non-performance is not cured within the
applicable time period set forth in this paragraph, then the Demanding Party shall be entitled to
begin the mediation and arbitration proceedings set forth in this Article. The Parties agree that
due to the size, nature and scope of the Development, and due to the fact that it may not be
practical or possible to restore the Property to its condition prior to Owner/Developer's
development and improvement work, once implementation of this Agreement has begun, money
damages and remedies at law will likely be inadequate and that specific performance will likely
be appropriate for the non-performance of a covenant contained in this Agreement. This
paragraph shall not limit any contract or other rights, remedies, or causes of action that either
Party may have at law or in equity.
7.3. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve
between themselves, the Parties agree that there shall be a forty-five day moratorium on
arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding
mediation before commencement of arbitration. The mediation shall be held under the
commercial mediation rules of the American Arbitration Association. The matter in dispute shall
be submitted to a mediator mutually selected by Owner/Developer and the Town. If the Parties
cannot agree upon the selection of a mediatorwithin seven days, then within three days
thereafter the Town and the Owner/Developer shall request the presiding judge of the Superior
Court in and for the County of Pima, State of Arizona, to appoint an independent mediator. The
mediator selected shall have at least five years' experience in mediating or arbitrating disputes
relating to real estate development. The cost of any such mediation shall be divided equally
between the Town and the Owner/Developer. The results of the mediation shall be nonbinding
on the Parties, and any Party shall be free to initiate arbitration after the moratorium.
7.4. Arbitration. After mediation, as provided for in this Article, any dispute, controversy,
claim or cause of action arising out of or relating to this Agreement shall be settled by
submission of the matter by both Parties to binding arbitration in accordance with the rules of the
American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. § 12-501 et
seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having
jurisdiction.
Article 8. General Terms and Conditions.
8. L Tenn. This Agreement shall become effective upon its execution by all the Parties and
the effective date of the resolution or action of the Town Council approving this Agreement (the
"Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless
sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall
thereafter be void for all purposes on December 31 immediately following the earlier of (i) the
twentieth anniversary of the Effective Date and (ii) the fifteenth anniversary of the date the
Interchange is completed by the Arizona Department of Transportation and first open for
vehicular traffic and use by the general public. The Town at its option may record a document in
the office of the Pima County Recorder which states the date the Interchange was completed by
the Arizona Department of Transportation and first open for vehicular traffic and use by the
general public. If the Parties determine that a longer period is necessary for any reason, the term
of this Agreement may be extended by written agreement of the Parties.
100006M.DOC / 2) 11/7/20075-09PM
MARANA SpEcmum DEvEmpmENT AGREEmENT
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8.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right
or remedy, and no waiver by the Town or the Owner/Developer of the non-performance 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.
8.3. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of
the terms, covenants or conditions of this Agreement, or by reason of any non-performance of
this Agreement, theprevailing Party shall be paid all reasonable costs and reasonable attorneys'
fees by the other Party, in an amount determined by the court and not by the jury. Nothing in the
use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 7.4
above, requiring disputes to be resolved by binding arbitration.
8.4. Countgnarts. 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.
8.5. Headinas. The descriptive headings of this Agreement are intended to be used to assist
in interpreting the meaning and construction of the provisions of this Agreement.
8.6. Recitals. The recitals set forth at the beginning of this Agreement are hereby
acknowledged, confirmed to be accurate and incorporated here by reference.
8.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been
incorporated in this Agreement by reference with the same force and effect as if fully set forth in
the body of this Agreement.
8.8. Further Acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter 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.
8.9. Time Essence. Time is of the essence of each and every obligation by the Town and
Owner/Developer under this Agreement.
8.10. Successors and Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Parties pursuant to A.R.S. § 9-500.05 (D).
Owner/Developer shall retain the right to receive Reimbursement Payments as provided by
paragraph 6.4 of this Agreement regardless of the status of title or ownership of any or all of the
Property unless Owner/Developer expressly assigns its rights to receive the Reimbursement
Payments. No assignment, however, shall relieve either party of its obligations under this
Agreement, except that an assignment by Owner/Developer in connection with the transfer of
title to the Property shall relieve Owner/Developer of its obligations under this Agreement if the
transferee agrees to be fully bound by the provisions of this Agreement. Any assignment by
Owner/Developer shall be subject to the approval of the Town, which shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, Owner/Developer may, without the Town's
consent, assign this Agreement to any Affiliate of Owner/Developer, or any entity in which
Owner/Developer or an Affiliate of Owner/Developer is a managing member or managing
partner or any entity in which BARCLAY GROUP and Kimco DEVELOPERS, INC. are owners. As
100006071-DOC / 21 11/7/20075,09PM
MARANA SPECTRUM DEVELOPMENT AGREEMENT
-10-
used in this paragraph, the term "Affiliate" means any entity under common control with
Owner/Developer. After assigriment of rights as provided in this paragraph, the assignee shall
receive the right to sales tax reimbursements under Article 6 of this Agreement to the extent of
the assignment.
8.11. No Title Encumbrance. Notwithstanding the fact that this Agreement is being recorded
in the Official Records of Pima County, it is intended that this Agreement shall not be an
encumbrance upon the title of any person or entity purchasing or owning a portion of the
Property, and that the terms and conditions of the Agreement are not covenants running with the
land and that no person or entity is bound by (or entitled to) the burdens and benefits of this
Agreement unless the burdens are expressly assumed by or the benefits are expressly assigned to
that person or entity.
8.12. Lender Provisions. Notwithstanding paragraph 8. 10 above, the Town is aware that
financing for development, construction, and operation of the Development may be provided, in
whole or in part, from time to time, by one or more third parties (collectively, "Lender"), and
that Lender may request a collateral assignment of this Agreement as part of its collateral for its
loan to Owner/Developer. The Town agrees that such collater * al assignments are permissible
without the consent of the Town. In the event of non-performance by Owner/Developer, the
Town shall provide notice of non-performance to any Lender previously identified -in writing to
the Town at the same time notice is provided to Owner/Developer. If a Lender is permitted under
the terms of its agreement with Owner/Developer to cure the non-performance and/or to assume
Owner/Developer's position with respect to this Agreement, the Town agrees to recognize the
rights of Lender and to otherwise permit Lender to assume such rights and obligations of
Owner/Developer under this Agreement. Nothing contained in this Agreement shall be deemed
to prohibit, restrict, or limit in any way the right of a Lender to take title to all or any portion of
the Property, pursuant to a foreclosure proceeding,, trustee's sale, or deed in lieu- of foreclosure.
The Town shall, at any time upon request by Owner/Developer or Lender, provide to any Lender
an estoppel certificate, acknowledgement of collateral assignment, or other document evidencing
that this Agreement is in full force and effect, that it has not been amended or modified (or, if
appropriate, specifying the amendment or modification), and that no non-performance by
Owner/Developer exists under this Agreement (or, if appropriate, specifying the nature and
duration of any existing non-performance) and certifying to such other matters reasonably
requested by Owner/Developer or Lender. Upon request by'a Lender, the Town will enter into a
separate assumption or similar agreement with the Lender consistent with the provisions of this
paragraph.
8.13. No Partnership. 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
Owner/Developer and the Town.
8.14. Third Party Beneficiaries. 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 to this
Agreement, and no such other person, firm, organization or corporation shall have any right or
cause of action under this Agreement, except that each present and future Anchor Tenant is
hereby made a limited third party beneficiary with respect to paragraphs 2.7 and 8.11 of this
Agreement. Any Anchor ' Tenant is not made a third party beneficiary of any other term,
provision or covenant contained in this Agreement. No Anchor Tenant shall have the right to
enforce any provision of this Agreement except paragraphs 2.7 and 8.11. Except as provided in
100006M.DOC / 21 11/7/20075:09PM
MARANA SpEcTRum DEvELopmENT AGREEA4ENT
- 11 -
paragraphs 2.7 and 8.11 of this Agreement, this Agreement is made and entered into for the sole
protection and benefit of the Parties and their permitted assigns, and no person other than the
Parties and their permitted assigns shall have any right of action based upon any provision of this
Agreement.
8.15. Other Instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all fin-ther instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
8.16. !Lnposition of Duty by Law. This Agreement does not relieve any Party of any
obligation or responsibility imposed upon it by law.
8.17. Entire AgEeement. This Agreement, including the attached exhibits, constitutes the
entire agreement between the Parties pertaining to the subject matter of this Agreement. All prior
and contemporaneous agreements, representation and understanding of the Parties, oral or
written, are hereby superseded and merged in this Agreement.
8.18. Amendments. No change or addition shall be made to this Agreement except by a
written amendment executed by the Parties. The Parties agree to cooperate and in good faith
pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals
expressed in the final plats or development plans governing the Property and Marana Spectrum
Plan as amended and superseded by this Agreement. Within ten days after any amendment to this
Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense
of the Party requesting the amendment.
8.19. Names and Plans. Subject to customary reservations by the architects and other design
professionals of copyrights to plans and specifications, the Owner/Developer shall be the sole
owner of all names, titles, plans, drawings, specifications, ideas, programs, ideas, designs, and
work products of every nature at any time developed, formulated or prepared by or at the
instance of the Owner/Developer in connection with the Property or any plansi provided,
however, that in connection with any conveyance of portions of the infrastructure as provided in
this Agreement such rights pertaining to the portions of the infrastructure so conveyed shall be
assigned to the extent that such rights are assignable, to the appropriate governmental authority.
8.20.,Good Standing, Authority. The Owner/Developer represents and warrants to the Town
that it is duly formed and validly existing under the laws of the state of -Delaware and is
authorized to do business in the state of Arizona. The Town represents and warrants to the
Owner/Developer that it is an Arizona municipal corporation with authority to enter into this
Agreement under applicable state laws. Each Party represents and warrants that the individual
executing this Agreement on its behalf is authorized and empowered to bind the Party on whose
behalf each such individual is signing.
8.21. SeverabilitY. If any provision of this Agreement is declared illegal, invalid or
unenforceable, in whole or in part, under present or future laws, it shall be severed from the
remainder of this Agreement, which shall otherwise remain in full force and effect. In lieu of the
illegal, invalid or unenforceable provision, there shall be added automatically as part of this
Agreement a provision as similar in terms to the illegal, invalid, or unenforceable provisions as
may be possible and still be legal, valid, and enforceable, and this Agreement shall be deemed
reformed accordingly. Without limiting the generality of the foregoing, if all or any portion of
the payments required by the terms of this Agreement are determined, by a court of competent
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MARANA SpEmRum DEvELopmENT AGREEmENT
-12-
jurisdiction in a final non-appealable judgment, to be contrary to public policy or otherwise
precluded, the parties shall utilize their reasonable, best effort's to promptly restructure and/or
amend this Agreement, or to enter into a new agreement to afford the Owner/Developer the
economic benefits of this Agreement in light of the benefits to the Town.
8.22. Governing Law. This Agreement is entered into in Arizona and shall be construed and
interpreted.under the laws of Arizona, and the Parties agre . e that any litigation or arbitration shall
take place in Pima County, Arizona. Nothing in the use of the word "litigation" in'the preceding
sentence shall constitute a waiver of paragraph 7.4 above, requiring disputes to be resolved by
binding arbitration.
8.23. Interpretation. This Agreement has been negotiated by the Town. and the
Owner/Developer, 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.
8.24. Recordation. The Town shall record this Agreement in its entirety in the office of the
Pima County Recorder no later than ten days after it has been executed by the Tow n and the
Owner/Developer.
8.25. No Owner/Developer RMresentations. Nothing contained in this Agreement shall be
deemed to obligate the Town or the Owner/Developer to commence or complete any part or all
of the development of the Property.
8.26. A
Mroval. If any Party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or, permission shall not be unreasonably
withheld or delayed.
8.27. Force M?jteure. If any Party shall be unable to observe or perform any covenant or.
condition of this Agreement by reason of "force majeure," then the failure to observe or perform
such covenant or condition shall not constitute an event of non-performance under this
Agreement so long as such Party shall use its commercially reasonable efforts to remedy with all
reasonable dispatch the event or condition causing such inability and such event or condition can
be cured within a reasonable amount of time. "Force majeure" as used in this paragraph means
any condition or event not reasonably within the control of such Party, including without
limitation, "acts of God," - strikes, lock-outs, or other disturbances of employer/employee
relations; acts of public enemies; orders or restraints of any kind of government of the United,
States or any state or subdivision thereof or any of their departments, agencies, or officials, or of
any civil or military authority-, insurrection; civil disturbances; riots; epidemics; landslides;
lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts; floods; arrests, restraints
of government and of people; explosions; and partial or entire failure of utilities. Failure to settle
strikes, lock-outs and other disturbances of ernployer/ernployee relations or to settle legal ' or
administrative proceedings by acceding to the demands of the opposing party or parties, in either
case when such course is, in the judgment of such Party, unfavorable to a Party shall not
constitute failure to use its best efforts to remedy such a condition.
8.28. ' 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.
8.29. Notices and Filings. All notices, filings, consents, approvals and other communications
provided for in or given in connection with this Agreement shall be validly given, filed, made,
transmitted or served if, in writing and delivered personally, sent via overnight national courier,
J00W6071DOC / 2) 11/7/20075:09PM
MARANA SPECMUM DEVELOPMENT AGREEMENT
-13-
or sent by registered or certified United States mail, postage prepaid, if to (or to such other
addresses as any Party may from time to time designate in writing and deliver in a like manner):
To the Town: Town Manager
Town of Marana
Marana Municipal Complex
115 5 5 West Civic Center Drive, A3
Marana, Arizona 85653
To Owner/Developer: Kimco BARCLAY MARANA, L.P.
c/o BARCLAY GROUP VENTURE CAPITAL, L.L.C.
7702 E. Doubletree Ranch Road, Suite 220
Scottsdale, Arizona 85258
with a copy to: Kimco DEVELOPERS INC.
Att'n: Dan Slattery, Executive Vice President
I I I I Burlington Avenue, Suite 113
Lisle, IL 60532
and: Kimco REALTY CORPORATION
Att'n: Ruth Mitteldorf
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
[Remainder of page intentionally left blank.]
(00006071.DOC / 11 11/7/20075-09PM
MARANA SpEcTRum I)EvELopmENT AGREEmENT
-14-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
TOWN:
THE TOWN OF MARANA,
an Arizona municipal corporation
By:
Ed Honea, Mayor
Date:
ATTEST:
OWNER/DEVELOPER:
Kimco BARCLAY MARANA, L.P.,
a Delaware limited partnership
By: KD MARANA 1553, INC.,
a Delaware corporation, its general
partner
By:
Name:
Title:
Date:
Jocelyn C. Bronson, Clerk
APPROVED AS To FoRm:
Frank Cassidy, Town Attorney
STATE oFARizoNA)
ss
County of Pima
The foregoing instrument was acknowledged before me on by
the of KD MARANA 1553, INC., a Delaware corporation, general
partner of Kimco BARCLAY MARANA, L.P., a Delaware limited partnership.
My commission expires:
Notary Public
100006071.DOC / 2) 11/7/20075.09PM
MARANA SPECTRUM DEVELOPMENT AGREEMENT
-15-
EXHIBIT A
Legal Description
A parcel of land located within a portion of the Northwest quarter of Section 22,
Township 12 South, Range 12 East, of the Gila and Salt River Base and Meridian, Pima
County, Arizona, more particularly described as follows:
Commencing at the North quarter comer of Secdon 22;
Thence S 00025'06" E 51.89 feet, along the East line of the northwest quarter of said
Section 22, to a point;
Thence leaving said East line, S 89*3454" W 30.00 feet, to a point on the West right-of-
way line of Camino De Mariana, as recorded in Road Maps Book 2, Pages 1-4, Pima
County Records, said point also marking the Point of Beginning;
Thence S 00*25'06" E 1,224.75 feet, along said West right-of-way line, to a point on the
northerly boundary line of Unisource Energy Corporation, as recorded in Docket 2363,
Page 94, Pima County Records;
Thence N 34*51'57" W 871.54 feet, along said northerly boundary line, to the beginning
of a 7829.44 foot radius non-tangent curve to the left, having a radial bearing of
N 35027'41" W;
Thence leaving said northerly boundary line, and along said curve, 58.18 feet, through a
central angle of 00*25'33", to a point;
Thence N 42*16'10" E 593.87 feet to the beginning of a 7729.44 foot radius
non-tangent curve to the left, having a radial bearing of N 40011'58" W;
Thence along said curve, 55.91 feet, through a central angle of 00*24'52", to the Point
of Beginning.
Together with a parcel of land located within a portion of the Northeast quarter of
Section 22, and a portion within the Southeast quarter of Section 15, Township 12
South, Range 12 East, of the Gila and Salt River Base and Meddlan, Pima County,
Arizona, more particularly described as follows:
Commencing at the North quarter comer of Section 22;
Thence N 89*45'16' E 31-09 feet, along the North line of the northeast quarter of said
Section 22, to a point on the East right-of-way line of Camino De Mariana, as recorded in
Road Maps Book 2, Pages 1-4, Pima County Records, and the beginning of a 379.26
foot radius non-tangent curve the right, having a radial bearing of S86*04'08"E, said
point also marking the Point of Beginning;
Thence leaving said North line, along said curve and said East right-of-way line, 30.19
feet through a central angle of 04033'44", to a point;
Thence leaving said East right-of-way line, N 89'45'16" E 30.54 feet, to the beginning of
a 7729.44 foot radius non-tangent curve to the left, having a radial bearing of
N 41032'37" W;
Thence along the curve, 128.00 feet, through a central angle of 00056'56", to the
beginning of a 7549.44 foot radius reverse curve the right;
Thence along said reverse curve, 528.73 feet, through a central angle of 04*00'46", to a
point;
Thence N 51031'13" E 610.78 feet, to the beginning of a 40.00 foot radius curve to the
right
Thence along said curve, 62.95 feet, through a central angle of 90* 10'09', to a point;
Thence S 38'18'47" E 412.88 feet, to the beginning of a 1507.39 foot radius curve to the
left;
Thence along said curve, 1366.29 feet, through a central angle of 51055,67", to a point;
Thence N 89045'16" E 87.91 feet, to a point of the East line of the northeast quarter of
said Section 22;
Thence S 00019'58" E 2,558.47 feet, along said East line, to the East quarter comer of
said Section 22;
Thence S89*45'49"W 1,621.14 feet, along the South line of the northeast quarter, of
said Section 22, to a point on the northerly boundary line of Unisource Energy
Corporation, as recorded in Docket 2363, Page 94, Pima County Records, and the
beginning of a 11272.37 foot radius non-tangent curve to the right, having a radial
bearing of N 48*03'25" E;
Thence leaving said South line and along said curve and said northerly boundary line,
1603.23 feet, through a central angle of 08*08'56", to a point on said East right-of-way
line of Camino De Mariana;
Thence leaving said northerly boundary line, N 00'25'06" W 1,334.45 feet, along said
East right-of-way line, to the beginning of a 379.26 foot radius non-tangent curve to the
right, having a radial bearing of N 89*23'42" E;
Thence along said curve and continuing along said East right-of-way line, 30.02 feet,
through a central angle of 04*32'10", to the Point of Beginning.
The total area of the two parcels contains: ± 7,315,255
more or less.
See attached exhibit "A'.
feet or ±1 67.9352 acres,
DETAIL W
c?
Wi
K
4
Z
BL4
V
8L4
00 m:
POINT OF COMMENCEMENT POINT OF BEGINNING
POINT BEGINNING
NORTH 1/4 COR. S EC. 22 co
P C
PARCEL #2
AR EL #2 0
N89*45'16"E 2629.14'
SOO*25'06"E 51.89'
m
POINT OF BEGINNING LAN
ICA C/
PARCEL #1
T NO
3632
Lu
RICHAR A
C)
c? PARCEL # STOCK A
C)
±7,014,993 S.F. I
3: Lo ±161.0421 ACRES I
M
:
M -d- CD
-
I
I
6(Y CAMINO
PARCEL # 0-)
co
V) cn
DE MANANA
OVERALL SITE AR
±300,262 S.F. ±7,315.255 S.F.
±6.8931 ACRES
t
±167.9352 ACRES
L --------- ----- - --- ----------- i
BOUNDARY LINE TABLE
LINE BEARING DISTAN
BL1 S00'25'06"E 1224.75'
9
BI-2 N34*51'57"W 871.54
'
BI-3 N42'16'10"E 593.87'
BL4 N89*45'16"E 30.54'
BL5 N51*31'13"E 610.78'
BL6 S38*1 8'47"E 412.88'
BL7 N89*45'16"E 87.91'
BL8 S00*1 9'58"E 2558.47'
]
BL9 89'45'49"W 1621.14'
--BL10 NOO-25'06"W 1334.45'
BOUNDARY CURVE TABLE
CURVE LENGTH RADIUS DELTA RAD.BRG-.
BCI 58.18' 7829.44' 0-25-33- N35-27'41 "W
'
BC2 55.91- 7729.44' 0'24'52" N401 1'58NW
BC3 30.19' 379.26' 4'33'44" S86'04'08"E
BC4 128.00' 7729.44' 0-56'56" N41-32'37"W
BC5 528.73' 7549.44' 4-00'46-
BC6 62.95' 40.00' 90*10'00"
BC7 1366.29' 1507.39' 51-55-57-
BC8 1
F 1603.23' 11272.3771 8-08'56- 1 N48-03'25"E
BC9 1 30.02' 379,26' 1 4-32'10' I N89-23'42-E
PROJECT NO. 6852BGP
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MARANA SPECTRUM
PIMA COUNTY; ARIZONA
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PROJECT NO. 68528GP
DATE: 08/14/20G7
BY: BK2
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PRO&C'r Na 406MZW COMMUNITY IMPROVEMENTS
DAM 08-13-M MARANA SPECTRUM
BY: AM
BARCLAY GROUP
SHEET NOL RGURE I MNWA ARZONA
Exhibit C
Scope of Work
Marana Spectrum
Drainage
1300 efs Drainage Channel
Excavation 200,000 yards
G,b,,,n/Sh.t Crete Lining 3300 fit
Lmd-ip,.g 1-52 .
Transition At Railway 1.0 each
Drop Structures/Grade Control 2 each
800 cfs Drainage Channel
F cavation 20000 yards
Concrete Structural Lining 650 ft
1,100 cfs Wash Enclosure
I 100 c& wash enclosure (con-arch or CSP
1100 fs open channel d/, fTwm Peaks
Utility Rdocaft-, d/, ofTwm Peak,
1,100 cfs Wash Culvert
I 100 fs -1,en ((? Twin Peak,
equivalent to twin 5x7 box) 1550 ft
600 fit
I each
1 each
Road Building
Constructed by Developer
Bus Pullout 300 ft
Traffic Signals at Lee Driveway 1 each
Traffic Signals at Twin Peaks mid-block 1 each
Deceleration LAnes 1225 ft
Constructed by Town ofMarana
Median Break at L? I each
Reconstruct Camino De Manana 1150 ft
Nlediari Break at un.signal-cl full moves access to Barclay I each
Bridge Q-1-10/Twin Peaks Road TI Underpass 1 each
Linda Vista-2 Extra, U, ties And Double Left Hand Turn At Twin Peaks 2250 ft
Twin Peaks Ne? Lanes 1 each
Water Supply/Fire Protection
Fire Storage Tank(840,000 gallon) 840000 gal
Land for Storage Tank 0.5 e
Nm 12" parallel well feed from site to existing Town storage Tank 5000 ft
New 16" Z-Zone Water Main 7365 ft
New Well Feed on Camino De.vlarana and Linda Vista (24" ductile Iron) 2790 ft
New Hydrants on Linda Vista And Twin Peaks 12 each
PRV at Z-Zone Booster Station - Hartman Vista Reservoir Site I each
Public Sewer Improvements
Reconstruct public 10" to 12" Oasis Hills Outfiall 2800 fit
Nine public 8" sub-trunk to SE property comer per Pima County 1900 ft
New public 15" scw?er to south west property limits 2600 fit
New steel sleeve at Twin Peaks Crossing 400 ft
New 15" public smer crossing Twin Peaks to existing manhole 800 Ft
Offsite Regional Trunk Sewer Improvements I each
Mitigation
404 Mitigation Cash in Lieu of mitigation I LS
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TOWN COUNCIL ?tl
TOWN OF MARANA I MARANA 7
MEETING 1 7
INFORMATION
1Z0
MEETING DATE: December 11, 2007 AGENDAITEM: J. 4
TO: MAYOR AND COUNCIL
FROM: Paul R. Popelka, RLA/AICP, Planner III
SUBJECT: PUBLIC HEARING. Resolution No. 2007-219: Relating to
Development; approving and authorizing the 2007 Marana
General Plan. Continued from the December 4, 2007 meeting.
DISCUSSION
Planninp- Commission Hearin
A public hearing for this case was held at the November 14, 2007, Planning Commission
meeting. The Planning Commission voted 6-0 (Commissioner Schisler was excused) to
recommend approval to the Town Council.
Background
This is a request for approval of a General Plan Amendment updating the 2003 Marana General
Plan. The 2003 plan has been updated in conformance with Arizona's Growing Smarter and
Growing Smarter Plus Legislation, which requires municipalities of Marana's size to adopt a
General Plan that provides an implementation and phasing strategy for the vision and goals of
the community with specific plan element and public participation requirements. The legislation
requires an update with public ratification every ten years, due in 2013 for Marana. This 2007
General Plan is a five year update that does not require public ratification for approval.
One requirement of the legislation is the formal adoption of a Public Participation Plan that
guides public input efforts. Developed by staff early this year, the Public Participation Plan was
adopted by Mayor and Council in March 2007 and is included in the 2007 Marana General Plan
as an appendix item.
In early September, Staff distributed a draft document to adjacent jurisdictions (Pinal County,
Pima County, City of Tucson and the Town of Oro Valley) and, several reviewing state,
regional, and local agencies for formal comment. Those agencies were given opportunity to
comment within 60 days for formal review and comment. Comments from several Agencies
have been incorporated into the General Plan.
Public outreach over the past several months has included focus group meetings with groups
from mining, agriculture and ranching, development, Southern Arizona Homebuilders
Association, utility companies, the Chamber of Commerce, and the Metropolitan Pima Alliance.
Several meetings have also been held with the Habitat Conservation Plan Stakeholders Working
Group, the Economic and Business Development Commission, the Affordable Housing
Commission, and the Parks and Recreation Commission. Information has been sent to all
HOA's for publication in their newsletters, and open houses for the general public were held in
120407 Marana General Plan 2007 TC
September and October. The General Plan website has been maintained with information and a
comment box for direct feedback to Town staff.
Pubtic Notification
A public notice for the hearing was published in the newspaper as well as posted at various
locations around the Town.
MARANA GENERAL PLAN 2007
The General Plan includes an Introduction, ten Plan Elements, Implementation and Appendices.
Each of these sections has been updated from the 2003 General Plan, and although much of that
plan remains valid, there have been many changes in the 2007 General Plan. A brief summary of
each section follows.
Introduction
Overview of the General Plan and review of the Town Vision - Orderly Growth, Economic
Opportunity, and Community Values - originally formed in the 1997 General Plan.
Land Use
Definition of the expanded Planning Area, updates to population and existing land use, and
projections for future land use within the Planning Area. Goals emphasize sustainability,
preservation of significant natural areas, and diversity and quality in development and
neighborhoods.
Circulation
Update of changes in planning the future circulation network based on land development activity
and newly proposed interchanges along 1-10. Goals emphasize a logical system to meet future
mobility needs for moving people and goods, including options for roads, mass transit, bicycle
and pedestrian improvements.
Growth Areas
Definition of those areas best suited for growth so that land development, circulation,
infrastructure and preservation of natural resources all work together to create sustainable
patterns of development.
Public Facilities and Services
Summary of facilities and services from the Town, like roads, water, and police protection, as
well as from quasi-public agencies like schools and fire districts. Goals in this element call for
clear planning for future needs, partnerships with other providers, expanding our water and
wastewater systems, and public safety.
Cost of Developmen
Emphasis on the costs of providing public facilities and services and the funding sources for
those costs, including developer provided improvements, impact fees, improvement districts,
grants, and other tools. Goals address methods and programs that meet those needs in the most
efficient and fiscally responsible ways.
120407 Marana General Plan 2007 TC
Environment
Emphasis on the natural resources - land, air, and water - and cultural resources of the
community. Air quality, water quality, protection of cultural resources, and preservation of
environmental quality are balanced with growth and development. The goals are about
protecting, conserving, and making the best sustainable use of available resources.
Recreation and Open Space
Summary of recreation facilities and programs, trails, and preservation of open space. The goals
again address protection of natural open spaces as well as provision of an extensive system of
parks, trails, and recreation programs to serve the community.
Water Resources
Summary of programs for potable and non-potable water to meet population growth and
development. Important aspects of water resources include water sources, reuse and recharge for
long range, sustainable programs for water use. Goals address sustainable use of water,
conservation, water quality, reuse, and recycling.
Economic Development
Emphasis on all aspects of economic development, targeting specific needs in housing and
employment diversity, business and industrial job centers, tourism, retail, infrastructure, health
care and education. The goals outline strategies for supporting existing and new business
development and tourism.
Housin
Definition of the value and availability of diversified housing choices and neighborhoods for all
residents of the community. Goals emphasize quality, diversity, and affordability of new and
existing housing.
Implementation
Review of basic functions of the General Plan and a comprehensive outlay of the steps required
to implement each recommendation of the plan. The Action Plan defines on-going, short-term,
mid-tenn, and long-term strategies for programs like circulation and annexation. Each goal,
policy, and action is assigned a responsible party and time frame for implementation.
Appendix
Detailed information on the Public Participation Plan, a section with data and development plans
for all specific plans in the community, updated Land Use Decision Keys and Glossary.
CONCLUSION
Staff would like to extend thanks to all Town departments, the Planning Commission, Town
Council, and all the interested citizens and groups that contributed to this effort.
120407 Marana General Plan 2007 TC
ATTACHMENTS
Printed copies of the Marana General Plan 2007 (dated November 20, 2007) were distributed at
the November 20, 2007 Town Council meeting and are not included in this packet.
RECOMMENDATION
Staff recommends approval of Resolution No. 2007-219, the 2007 update and amendment to the
Town of Marana, General Plan.
SUGGESTED MOTION
I move to approve Resolution No. 2007-219.
120407 Marana General Plan 2007 TC
MARANA RESOLUTION NO. 2007-219
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE 2007 MARANA
GENERALPLAN.
WHEREAS, the Town of Marana approved and adopted the current Marana General Plan
on November 5, 2002 (Resolution 2002-123); and
WHEREAS, in 1998 and 2000 the Arizona Legislature adopted the Growing Smarter Act
and Growing Smarter Plus Act requiring Arizona cities and counties to prepare, adopt, and
update General Plans; and
WHEREAS, in order to evaluate and subsequently respond to changing growth issues,
Marana has updated its current General Plan in compliance with the Growing Smarter legislation;
and
WHEREAS, the Town of Marana has disclosed the Town's update draft to jurisdictional
reviewing agencies as well as citizens, business owners, community stakeholders, and other
private and public entities of interest in conformance with the State Legislation and in a manner
conducive to fostering public participation and comprehensive planning; and
WHEREAS, on November 14, 2007, after holding the required public hearing, the
Planning Commission of the Town of Marana, Arizona, considered the document known as
"Town of Marana General Plan 2007" for adoption as the Marana General Plan, and
unanimously recommended adoption of said plan for use as the Marana General Plan; and
WHEREAS, the Town Council of the Town of Marana, Arizona, held a public hearing
on December 4, 2007 on the Marana General Plan to obtain input on said plan, and believes that
the adoption of the Marana General Plan is in the best interest of the citizens of the Town of
Marana, Arizona.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, that the Marana General Plan 2007 be approved.
Marana Resolution No. 2007-219 Page I of 2
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona,
this I lth day of December 2007.
ATTEST:
Jocelyn C. Bronson
Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
Ed Honea, Mayor
Marana Resolution No. 2007-219 Page 2 of 2