2024-05-08 -PC 706 -REIMBURSEMENT-AGREEMENT-BUTLER-DRIVE-AND-129TH-AVENUE-AWSV3 (3).DOCX
Extracted text (via pymupdf)
9110 characters
12656.1.3833105.6 AGREEMENT TO REIMBURSE FUNDS FOR THE CONSTRUCTION OF BUTLER DRIVE AND 129TH AVENUE AMONG MARICOPA COUNTY, DPML COPPERWING, LLC AND DPML COPPERWING LANDCO IV, LLC This Agreement is made on May __, 2024, by and between: Maricopa County, a political subdivision of the State of Arizona, with an address c/o Maricopa County Department of Transportation, 2901 W. Durango, Phoenix, Arizona 85009 (hereinafter County), DPML Copperwing, LLC, a Delaware Limited Liability Company, and DPML Copperwing Landco IV, LLC, a Delaware Limited Liability Company, both with an address at 5500 Equity Avenue, Reno, NV 89502 (collectively hereinafter Developer), collectively the Parties. Whereas, County, the Cities of Glendale, Peoria, and El Mirage, all Arizona Municipal Corporations, formed the Northern Parkway Executive Committee, and are also known as the Partners. The Partners entered into an Intergovernmental Agreement dated December 26, 2008, recorded in the office of the Maricopa County Recorder as document number 2008-1088049 (IGA), to define the Partners’ respective responsibilities for the cost-sharing, design, construction, construction management, rights-of-way acquisition, utility relocation, and maintenance of the Northern Parkway Program (NPP) as defined in said IGA and under the Maricopa Association of Governments (MAG) Regional Transportation Plan (RTP) and the Arterial Life Cycle Program (ALCP). Whereas, County is the lead agency for the NPP and acts on behalf of the Partners to administer the federal aid reimbursement process under Section 134 of Title 23 of the U.S.C. and Section 5303 of Title 49 of the U.S.C. Under said Program, the Partners are classified as a Sub-Recipient. Whereas, Federal-Aid Highway Funds have been apportioned to the Arizona Department of Transportation (ADOT) for reimbursement of the Sub-Recipient’s activities. Whereas, as part of the improvements to the NPP, the Partners constructed Butler Drive and 129th Avenue (Project). Whereas, all property rights to the Project are vested in the City of El Mirage. Whereas, since the execution of the IGA and construction of the Project, an abandonment request was submitted to El Mirage by the Developer to abandon the Project (Abandonment). Whereas, the Partners have been in communication with the Federal Highway Administration (FHWA), ADOT, and MAG and have been directed that, if the Abandonment occurs, all federal expenditures and local matching funds must be reimbursed in full. Whereas, the Partners have advised the Developer that the Abandonment cannot occur unless the Developer agrees to provide to the Partners the funds required to reimburse 100% of the Federal and Local Match (Reimbursement) used to construct the Project. Whereas the amount necessary for the Reimbursement is estimated to be Eight Million and no/100 ($8,000,000.00) Dollars. Whereas, the Developer has agreed to provide the funds for the Reimbursement. 12656.1.3833105.6 2 Whereas, the County, through its Department of Transportation (hereinafter referred to as (MCDOT), has accepted responsibility for administering the reimbursement to FHWA and NPP. NOW THEREFORE, for good and valuable consideration, the mutual promises herein contained, and other good and valuable consideration, the sufficiency and adequacy of which are acknowledged, the County, on behalf of the Partners, and the Developer agree as follows: 1. The County and the Developer acknowledge the truth and accuracy of the foregoing recitals and incorporate them herein by this reference. 2. Prior to the City of El Mirage adopting an Ordinance of abandonment of the Project, the Developer shall deposit into escrow the sum of $8,000,000, which sum shall be released to the County to be used only to reimburse the FHWA and the NPP. Escrow will release the Reimbursement to County pursuant to escrow instructions but in no event later than September 30, 2024. The escrow funds shall not be released to the County unless and until each of the following occurs: (i) the County Board of Supervisors approves a resolution rescinding a certain Resolution of Open Declaration of Roadway for the relevant portions of 129th Avenue and Butler Drive, (ii) the County Board of Supervisors approves a resolution relinquishing all interest it has or may have in certain drainage and slope easements for the Project (collectively, the Recissions), (iii) recording of the Recissions; and (iv) the recordation of El Mirage’s abandonment ordinace. Immediately upon the last of the above conditions being satisfied, the escrow funds shall be released and payable to the County on behalf of the Partners. 3. Any amount remaining with the County after all funds have been reimbursed to FHWA and NPP shall be returned to Developer. Any such funds shall be returned to the Developer not later than December 31, 2024. 4. All notices or communications under this Agreement shall be in writing and mailed, personally delivered, or emailed to the addresses listed below in this Agreement; copies of all notices to County shall also be sent to the County Attorney, Civil Services Division. The County or the Developer may, upon ten (10) days’ prior written notice to the other entity as provided herein, change its address for purposes of notices hereunder. 5. To further the cooperation of the Parties in implementing this Agreement, each shall designate and appoint a representative to act as a liaison. The initial representative for the County shall be the Director of MCDOT or their designee. The representative for the Developer shall be Pat Gallagher, whose contact information is known to the County. 6. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one Agreement. Electronic signatures shall constitute valid execution of this Agreement. 7. This Agreement is subject to the provisions of A.R.S. § 38-511. 8. This Agreement shall be governed by and construed under the laws of the State of Arizona. 9. The Parties agree in good faith to execute such further or additional instruments and documents and to take such further acts as may be necessary or appropriate to fully carry out the intent and purpose of this Agreement. 12656.1.3833105.6 3 10. The Parties have been represented by counsel in the negotiation and drafting of this Agreement and this Agreement shall be construed according to the fair meaning of its language. The rule of construction that ambiguities shall be resolved against the Party who drafted a provision shall not be employed in interpreting this Agreement. 11. This Agreement constitutes the entire agreement between the Parties hereto of the subject matter hereof. All prior and contemporaneous agreements, representatives, and understandings of the Parties, oral or written, are hereby superseded, and merged herein. 12. Time is of the essence in this Agreement. Addresses: Maricopa County Department of Transportation Attention: Director’s Office 2901 West Durango Street Phoenix, Arizona 85009 Maricopa County Attorney’s Office Civil Services Division Attention: MCDOT 225 West Madison Street Phoenix, Arizona 85003 DPML Copperwing, LLC DPML Copperwing Landco IV, LLC c/o Dermody Properties Attention: C. Douglas Lanning, Chief Financial Officer 5500 Equity Avenue Reno, NV 89502 With copy to: Gammage & Burnham PLC 40 North Central Avenue, 20th Floor Phoenix, Arizona 85004 Attn: Stephen Anderson, Esq. 12656.1.3833105.6 4 IN WITNESS WHEREOF, Maricopa County, DPML Copperwing, LLC, and DPML Copperwing Landco IV, LLC, have executed this Agreement as of the date set forth above. COUNTY: MARICOPA COUNTY, an Arizona county Chairman, Date Board of Supervisors ATTEST Clerk of the Board Date APPROVED AS TO FORM: By: Deputy County Attorney STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On this _____ day of ______________, 2024 ______________________, came before me and appeared ______________________, the _____________________ of Maricopa County, an Arizona county, for and on behalf thereof, whose identity was proven to me based on satisfactory evidence to be the person whom he or she claims to be, and acknowledged that he or she signed the above/attached document. Notary Public [Affix notary seal here] 12656.1.3833105.6 5 DPML Copperwing, LLC A Delaware Limited Liability Company By: C. Douglas Lanning, CFO & Secretary STATE OF NEVADA ) ) ss. County of Washoe ) This instrument was acknowledged before me on ___________________ (date) by ___________________________ (name of person). (Signature of notarial officer) Print Name: Title: [Affix notary seal here] 12656.1.3833105.6 6 DPML Copperwing Landco IV, LLC A Delaware Limited Liability Company By: C. Douglas Lanning, CFO & Secretary STATE OF NEVADA ) ) ss. County of Washoe ) This instrument was acknowledged before me on ___________________ (date) by ___________________________ (name of person). (Signature of notarial officer) Print Name: Title: [Affix notary seal here]