PRESERVATION AND CONSERVATION RESTRICTION

Transcription

1 PRESERVATION AND CONSERVATION RESTRICTION THIS PRESERVATION AND CONSERVATION RESTRICTION ( Deed Restriction ) is made as of the day of, 2017, by and between the City of Tucson, a municipal corporation organized and existing under the laws of the State of Arizona ( City ), and ( Buyer ), whose principal address is, Tucson, Arizona. RECITALS A. The City is the owner in fee simple of that certain property, together with the building and improvements thereon, located in the City of Tucson, Pima County, Arizona, commonly known as 124 E Broadway Blvd., Tucson, AZ 85701, which is more particularly described in Exhibit A attached hereto and made a part hereof (the Property ). B. The current two story building with basement (the Building ) constructed on part of the Property is eligible for listing in the National Register of Historic Places ( NRHP ). C. The City plans to sell the Property to Buyer and wishes to impose certain restrictions, obligations and duties with respect to maintenance, protection, and preservation of the eligibility of the Building for listing in the NRHP. D. This Deed Restriction does not impose any restriction on the interior of the Building. NOW, THEREFORE, in consideration of the foregoing, the City hereby establishes a conservation easement, in gross, according to the terms contained herein to contribute to the public purpose of ensuring the preservation of the eligibility of the Building for the NRHP, which shall apply in perpetuity to the Property subject to the terms hereof. The Buyer, on behalf of itself and its successors in interest and assigns, hereby covenants and agrees to the following terms and restrictions ( Restrictions ) in perpetuity, as benefitting the Building, the Property, its neighborhood, and the community. 1. Purpose: To protect the exterior character-defining elements of the Building that make it eligible for the NRHP by ensuring they will be retained and maintained forever. 2. Changes: Changes to the exterior of the building that meet the Secretary of the Interior s Standards for Rehabilitation shall be allowed in accordance with the recommendations included in the Historic Character Assessment and Rehabilitation Design Recommendations Final Report (16 November 2016) approved by the State Historic Preservation Office. Changes to the exterior of the Building that will materially impair or interfere with the eligibility for listing in the NRHP shall be restricted. {A docx/} Page 1 of 9

2 3. Maintenance: a. Buyer shall maintain, repair and manage the Building so as to preserve, stabilize and prevent the deterioration of the exterior elements that qualify the Building for listing in the NRHP, and shall assume all costs related to continued maintenance, repairs, and management. b. Upon transfer of title from the City, the City does not assume any obligation for maintaining, repairing or managing the Building or Property. 4. Inspection: The Buyer and successors shall allow the City to inspect the Building from time to time upon reasonable notice to determine whether it is in compliance with the terms of this Deed Restriction. 5. Alterations: There shall be no alterations made to the exterior of the Building unless (a) clearly not affecting the character-defining elements which contribute to the eligibility of the Building for the NRHP, or (b) the Tucson- Pima County Historical Commission ( Commission ) has previously determined that the alterations will not impair such eligibility after reviewing plans and specifications submitted by the Buyer or successor, or (c) required by casualty or other emergency promptly reported to the City Historic Preservation Officer. Any proposed significant alterations of the exterior or additions shall meet the City s Unified Development Code and its Technical Standards (the UDC ), as these may be amended from time to time, and shall be reviewed by the Commission in accordance to procedures in the UDC. 6. Ordinary maintenance and repair of the Building exterior may be made without review by the Commission. For purposes of this section, interpretation of what constitutes alterations of a minor nature and ordinary maintenance and repair is governed by whether they do not involve character-defining elements of the exterior facades as identified in the Historic Character Assessment and Rehabilitation Design Recommendations Final Report (16 November 2016) approved by the State Historic Preservation Office. 7. Notice and Approval: Whenever approval by the City is required under this Deed Restriction, the Buyer or successor shall follow the submittal and review process defined in the UDC. 8. Insurance: The property owner, at his sole cost and expense, shall at all times (a) keep the building insured at its replacement cost value adjusted over time {A docx/} Page 2 of 9

3 on an all risk basis to include restoration of the facades in the event of loss or damage; and, (b) carry and maintain liability insurance to protect against injury to the public, and naming the City as additional insured on the policy. 9. Casualty Damage or Destruction. In the event that the Building or any part thereof shall be damaged or destroyed by fire or other casualty, Buyer or successor shall promptly notify the City Historic Preservation Officer in writing (the Damage Determination Notice ), but in no event later than twenty one (21) days after such casualty. No repairs or reconstruction of any type other than temporary emergency work to prevent further damage to the Building or to protect public safety shall be undertaken by Buyer or successor without the City s prior written approval. In the Damage Determination Notice, Buyer or successor shall state if they have concluded whether or not it is economically feasible to repair or restore the eligibility of the Building for the NRHP 10. Review After Casualty Damage or Destruction. If Buyer or successor has determined that it is economically feasible to repair or restore the eligibility of the Building for the NRHP, Buyer or successor shall proceed to do so in accordance with the terms of this Deed Restriction. a. Buyer or successor shall submit to the City, within forty five (45) days of the Damage Determination Notice, plans and specifications for the repair or restoration of the Building along with a construction schedule for the work. b. The City shall have sixty (60) days to review such plans, specifications and schedule, and the parties shall proceed with the approved plans. c. Buyer or successor will use its best efforts to maximize the insurance proceeds available for repair or rebuilding of the improvements. 11. Improvements shall be made in accordance with all applicable laws and regulations. 12. If the City concurs, after review by the Commission, with the opinion of Buyer or successor, that it is not economically feasible to repair or reconstruct the Building or that the purpose of this Deed Restriction would not be served by such repair or restoration, Buyer or successor may alter, demolish, remove or raze the building in conformance with the criteria and processes in the UDC. 13. In the event City and Buyer or successors agree it is not economically feasible to repair or reconstruct the Building, Buyer or successor and City agree to {A docx/} Page 3 of 9

4 extinguish this Deed Restriction in accordance with applicable criteria and processes in the UDC. 14. In the event Buyer or successor submits the Damage Determination Notice concluding it is not economically feasible to repair or reconstruct the Building and the City, informed by the Commission, disagrees, then City shall give written notice to Buyer or successor of its disagreement. City and Buyer or successor shall then attempt to reach agreement within sixty (60) days of City s written notice. In the event agreement cannot be reached the parties agree to submit the matter to binding arbitration. 15. Conveyance and Assignment. a. City may convey, transfer and assign its rights and obligations in this Deed Restriction to a similar local, state or national organization whose purposes, inter alia, are to promote preservation and conservation, and which is a "qualified organization" under Section 170(h) (3) of the Internal Revenue Code of 1986, as amended, provided that any conveyance or assignment requires that the conservation of the eligibility for listing on the NRHP will continue to be carried out. b. The Commission may assign its obligations under this Deed Restriction to another governmental body or to any charitable corporation or trust among the purposes of which is the maintenance and preservation of the eligibility of buildings for the NRHP, only in the event that the Commission should cease to function in its present capacity. 16. Indemnification. Buyer and successors covenant to pay, protect, indemnify, hold harmless and defend City, at the Buyer and successors sole cost and expense from any and all liabilities, claims, costs, attorney s fees, judgments or expenses asserted against City, its employees, agents or independent contractors, resulting from actions or claims of any nature arising out of the conveyance, possession, administration or exercise of rights under this Deed Restriction, except in such matters arising solely from the negligence of City, its employees and agents. 17. Default/Remedy. In the event Buyer or successor fails to perform any of the obligations set forth herein or otherwise comply with any stipulation or restriction set forth herein, City, or its designee, following prior written notice to Buyer or successor, may either: a. Institute suit(s) to enjoin any violation of the terms of this Deed Restriction by ex parte, temporary, preliminary or permanent injunction, including without limitation prohibitory and/or mandatory injunctive relief, and to require the restoration of the eligibility for listing on the {A docx/} Page 4 of 9

5 NRHP. The City shall also have available all legal and other equitable remedies to enforce the obligations of the Buyer or its successors hereunder. In the event any civil action is commenced and Buyer or successor is found to have violated any of obligations herein or is otherwise liable under this Deed Restriction or any other applicable local, state and federal laws, rules, bylaws and regulations, including without limitation applicable policies, procedures and guidelines of the Commission, as they may be amended from time to time (the "Commission Guidelines"), Buyer or successor shall reimburse the City for any costs or expenses incurred in connection with the City's enforcement action, including without limitation all reasonable court costs, and attorney, architectural, engineering and expert witness fees; or b. Enter upon the Property and Building, correct any such violation, and hold the Buyer or successor responsible for the cost thereof. 18. Waiver. The exercise by City or its designee of any remedy hereunder shall not have the effect of waiving or limiting any other remedy and the failure to exercise any remedy shall not have the effect of waiving or limiting the use of any other remedy or other use of such remedy at any other time. 19. Validity and Severability: The invalidity or unenforceability of any provision of this Deed Restriction shall not affect the validity or enforceability of any other provision herein. 20. Violation of Law. Nothing contained herein shall be interpreted to authorize or permit the Buyer or successor to violate any ordinance or regulation relating to building materials, construction methods or use, and the Buyer and successors agree to comply with all applicable laws, including, without limitation, all building codes, zoning laws and all other laws related to the maintenance and demolition of a building that is eligible for the NRHP. In the event of any conflict between any such laws and the terms hereof, the Buyer or successor shall promptly notify City of such conflict and shall cooperate with City and the appropriate authorities to accommodate the purposes of both this Deed Restriction and such ordinance or regulation. 21. Runs with the Land. The burden of the terms contained herein, shall run with the land and shall be and are covenants running with the land, encumbering and binding upon the Property, the Buyer, its successors in title and future owners of an interest therein. 22. Amendments and Modifications. For purposes of ensuring the continued eligibility of the Building for the NRHP, and to meet changing conditions, the Buyer or successor and City are free to jointly and in writing amend the terms of this document. Such amendment shall become effective upon {A docx/} Page 5 of 9

6 recording the same in the office of the County Recorder, Pima County, Arizona. 23. Recitals. The above Recitals are incorporated herein by this reference. 24. Feminine and Masculine. For purposes of this Deed Restriction, the feminine shall include the masculine and the masculine shall include the feminine. 25. Entire Agreement. This Deed Restriction constitutes the entire understanding and agreement of the parties with respect to the subject matter herein. All prior and contemporaneous understandings, representations and agreements, oral or written, unless otherwise expressly stated herein, are hereby superseded and are of no further force and effect. IN WITNESS WHEREOF, the Buyer and City executed this Deed Restriction as of the date first above written, and which Deed Restriction shall be effective immediately upon such execution. {A docx/} Page 6 of 9

7 BUYER: Buyer By: Its: STATE OF ARIZONA ) )ss. COUNTY OF PIMA ) This instrument was acknowledged before me this day of,, by, as, of. Notary Public {A docx/} Page 7 of 9

8 CITY OF TUCSON: Recommendation for Approval: By: Jonathan Mabry Historic Preservation Manager, Planning and Development Services Approved as to form: Damian Fellows Principal Assistant City Attorney CITY OF TUCSON, a municipal corporation By Mayor ATTEST: City Clerk STATE OF ARIZONA ) )ss. COUNTY OF PIMA ) This instrument was acknowledged before me this day of,, by, as Mayor, and, as City Clerk of the City of Tucson, a municipal corporation, as the Act of said Municipal Corporation. Notary Public {A docx/} Page 8 of 9

9 EXHIBIT "A" LEGAL DESCRIPTION {A docx/} Page 9 of 9

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